Category Archives: Thomas Jefferson

Our Friends, the Scum

Spoiler alert: Graham Parker line of the day contained at the end.

I was watching one of those American History/book review channels that nobody ever watches and was amazed by a theory put forth by a History Professor Emeritus. It was her theory, and the HER being somewhat relevant, that all American History might be different but for the fact that Dolley Madison wanted to keep the slaves of James Madison after his death. She posited, on the flimsiest of evidence, that James Madison had a will that freed his slaves but Dolley destroyed that will in favor of an earlier will which was probated and did not free his slaves. It was Professor’s theory that had the Father of the Constitution freed his slaves, America would have grown into a better place and might have found a better solution to its national disgrace (my words…holocaust is better) and perhaps might have avoided its civil war. What bullshit!

 

On better evidence, I am a true Blumrosian, convinced that the American Revolution was fought specifically or at least partially for the very purpose of preserving slavery against the movement in England against the institution (see Slave Nation by Alfred and Ruth Blumrosen). The Declaration of Independence and Constitution reek of concern for the preservation of local law in the face of national concerns. Yet the Blumrosens, and my work applauding theirs, http://idiscoveredamerica.com/?p=443 , has been held in universal contempt, only recently getting some grudging acceptance from some historians. In this context, the work of this Professor, who seems to actually blame a woman for the civil war, is just more avoidance of the truth of the matter…that some of the men who founded this nation…. specifically, Washington, Jefferson, Marshall, and Madison, were lying scum who never could acknowledge their blindness to the horrors that they perpetrated.

 

And one word about Dolley Madison. She was a straight shooter who acknowledged her privilege as a southern slave owner. She had her faults, but hypocrisy was not one of them. She did not cause the civil war, nor did she corrupt otherwise incorruptible men. We did not inherit her world, but we did inherit the world of the Founders and that affects us to this day. And speaking of scum… here is the Graham Parker line of the day. From Ambiguous on Don’t Ask Columbus…”and the meek shall inherit the earth from their friends the scum.”

The end of Marbury v. Madison (as we know it)

TEOMVMAWKI

The End of Marbury v. Madison (as we know it)

“There’s nothing to hold on to, when gravity fails you and every kiss enslaves you…” Graham Parker

 

Does President Trump have to divest his assets? Is he subject to the emoluments clause? Does he have to disclose his tax returns? If you answered yes to any of these questions I think you are in for a rude awakening.

Ask most Americans which branch has the ultimate power to interpret the Constitution and they will answer that it is the Judicial Branch. Some will even suggest that the issue was settled by Chief Justice John Marshall in the case of Marbury v. Madison decided in 1800. Well, if that was my answer on my Constitutional Law exam, I think Professor Schwartz would have given me partial credit. Maybe a C.

First, as I am wont to do, I will point out that Marbury v. Madison was decided by a slaveholder (Marshall) for the benefit of slaveholders (President Jefferson and his Secretary of State James Madison). In the waning days of his administration, President John Adams tried to appoint officials to various positions including William Marbury as a Justice of the Peace in Washington DC. The fact that slavery was permitted steps away from the corridors of power in Washington was considered a blight on the government by the fledgling antislavery movement. Presumably, a Justice of the Peace who had no allegiance to slaveholders could have curtailed that great injustice. Slaveholders resisted the appointments. Through some mumbo jumbo, Chief Justice Marshall ruled in favor of the slaveholders and denied the commission to William Marbury, allowing Jefferson and Madison to appoint their own Justice of the Peace, presumably one who would agree with their political ends. The idea of judicial review was born here, in the decision by Marshall. It was a byproduct of the decision; the end justifying a means.

The Constitution sets up three branches of government. It spells out the relationship between the branches. The President appoints the Supreme Court justices with the advise and consent of the Senate. The Congress can impeach the President. etc. Nowhere in the Constitution does it provide that the Supreme Court is the final arbiter in disputes between the branches or as to the “constitutionality” of a piece of legislation or executive action. Depending on your viewpoint it is either ultimately logical or totally illogical that the branch that is furthest away from the direct selection by the People has this ultimate power. In any event, I suggest that Marbury v. Madison and judicial review is not the settled law that many think it is. Perhaps it was just a self-serving power grab by one branch, subject to resistance by another.

So now President Trump faces a lawsuit which argues that he must divest his business holdings or he is in violation of the emoluments clause of the Constitution. It seems logical that as part of that lawsuit he will again be requested to turn over his tax returns. So what happens if he loses the case and then just says NO.

Such a response is not out of the question for this president. He can point to the Constitution and ask where it says that the Supreme Court has power over the executive branch. He can assert that the People have the ultimate power and the People elected him to do the job and don’t care about his business holdings. He can suggest that if Congress or the People don’t like him, their recourse is to impeach him. Despite musings to the contrary, this viewpoint is not without merit. Had I answered same to Professor Schwartz, I think I would have gotten an A.

As we ride through untested waters, I suggest that in a world where nothing is sacred, Marbury v. Madison may be the next ball to drop.

Today’s Lesson on the Constitution 2/18/2016

Today’s Lesson on the Constitution 2/18/2016

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. (Justice Taney Opinion: Dred Scott v. Sanford, 60 US 393 (1856)).

 

After being out of work for a while I decided I would do what most out of work attorneys do…write a book about something of interest to me. I stumbled on the story of Bill Richmond, who was born a slave in America about 1763 and who became the Mohammed Ali of his time as a boxer in England. As I began my research, I had few preconceived notions about the direction I would take. Like most Americans, I shared the basic admiration for the work of our Founders and wanted them to figure into the story. In my past I had done a lot of reading about the Revolutionary War period, and as a attorney I was fairly well acquainted with the early legal cases that helped form our nation.

I reread the decision in Somersett’s Case, which was a 1772 decision of the highest court of the land, the British Court of Chancery. In that case the brilliant Judge Lord Mansfield ruled that slavery was an odious institution that could not be supported by natural law. It occurred to me that the Founders, as learned men,  must have read this decision and accounted for it in their founding documents. It struck me that for Bill Richmond to succeed in England when he was but a slave in America meant that the British had to be the more civilized of the two places, at least as to the issue of rights for minority populations. The thought crept in…perhaps we were on the wrong side in the American Revolution. And worse, was a desire to maintain slavery a core principle in fighting the Revolution and breaking away from those enlightened of England, like Lord Mansfield, who were questioning the right to maintain the institution?

Eventually my research led me to reread perhaps the most despised Supreme court decision, Dred Scott, quoted above, even though it was decided way past the years of my book. As we today contemplate the legacy of Justice Scalia, who is considered brilliant by some, I am struck by the above language which easily could have come from one of Scalia’s opinions. Instead it was written by Justice Taney in a decision held to universal condemnation since it put forth the notion that those of African descent were not and could not be a part of “we the people” and that almost any law passed by Congress which suggested otherwise was unconstitutional. The concepts of “original intent” and Scalia’s “originalism” are not new…they are the long standing bogus religions of those who really do not understand the promise of America.

It gets worse. Justice Taney requires us to make a choice. He quotes the Declaration of Independence and then puts forth an incredible notion that I took very personally.

“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 them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. (Justice Taney in Dred Scott)

As I contemplate the Dred Scott opinion I agree with Justice Taney that each American has to choose between accepting one of two difficult notions; that either many of our founders lacked insight and specifically set up a nation where those of African descent were never to be included, or that many of the Founders were hypocrites who deserve universal rebuke and reprobation. He chose the former and I have chosen the latter.  That leaves me where I am today, pretty much in condemnation of our Founders and their documents. I am convinced that you cannot understand the founding documents without questioning the purity of our Founders. The goals of the Founders must be analyzed and resolved for there to be legitimate analysis and criticism of their work. A new view of our Constitution is required…one that requires every word to be analyzed for its possible link to maintaining the scourge of slavery.

 

The Great American Essay

The Great American Essay

By Jerry Leibowitz

 

fiat justitia, ruat coelom (translation in last paragraph)

Lord Mansfield, The Decision in Somerset’s Case, June 22, 1772[i]

America is false to the past, false to the present, and solemnly binds herself to be false to the future.

Frederick Douglass, 1852[ii]

 

 

The wealthy landowners of Virginia and other southern colonies were fat and happy in 1766. The attempt in Great Britain to get the colonists to pay for the defense of their western border through the Stamp Act of 1765 was repealed in 1766 leading the Virginia assembly to consider erecting a statue of thanks dedicated to King George III.[iii] Yet by 1775, much of the south was ready to participate with the perennially dissatisfied northern colonists in the American Revolution. What happened in the south between 1766 and 1775 to cause the privileged class of the southern colonies to become revolutionaries? It must have been something quite serious for these men to risk their lives and consider revolting against the source of their wealth and power. It was. Fomenting in 1772, there was an insidious threat to their way of life brewing in the mother country and colonial self-rule seemed the only way to stop it. In a place and time which we think of as bursting with a desire for freedom, much of what was done was done to preserve the institution of slavery.

Any study of the American Revolution which does not mention the British High Court decision in Somerset’s Case in 1772 is not a history at all, but a perpetrated fiction with footnotes. Arguably, it is as a result of the decision in Somerset’s case that the American “war for independence” was fought.[iv] In the decision, the highest court in Great Britain ruled the obvious; that slavery was an odious institution inconsistent with enlightened British and natural law. As a result of the decision, any American slave who made his or her way to England, even under a master’s control, could not be forced back to enslavement in America. Since under British common law men were by nature “free”, it was argued that the owning of a slave was the equivalent of kidnapping, assault, and false imprisonment.[v] According to the restrained decision, such an odious act against natural law could only be legal in England if there were a positive law permitting it to exist. But there was no such positive law in all of Britain, nor does it seem possible that such a law could have been consistent with the British notion of the rights of man that had developed by the mid-18th century.[vi] The institution of slavery, so widespread in the Americas had come to be seen by many in England as a relic of a barbarous past.[vii] Although the decision in Somerset’s case only applied to those slaves who found a way to the soil of England, American slave owners in the British Colonies understood that, as British citizens, their time to own another human as property could be nearing its end. Their solution was not to reconsider the institution of slavery in any meaningful way, but instead to break the ties with the country that threatened their lifestyle.  It was the Americans who, while spouting about freedom, were on the wrong side of history, at least as to the issue of slavery.

Although the American colonists in the north and the south were motivated by a different set of grievances against Great Britain, by the time of the outbreak of the American Revolution in 1775 they were united in their desire for self-determination and freedom from the constraints imposed on them by distant rule. In the north, the grievances were largely mercantile, relating to unfair taxation and the restraint of trade. History has chosen to attribute the call to war largely to these grievances.[viii] But in the south, after the ill-conceived Stamp Act of 1765 which was repealed in 1766, British rule was largely unobtrusive if not beneficial. Many white southerners enjoyed a superior quality of life, hardly the life that makes one think of revolution.[ix] Were it not for the threat to slavery posed by the decision in Somerset’s’ case in 1772, it seems inconceivable that there would have been a move towards radicalism and independence. In the south it was understood that any threat to the institution of slavery was a threat to their entire way of life.[x] To slave holders, independence from Great Britain meant the ability to decide for themselves the future of the legality of slavery. It meant the ability to pass positive laws consistent with their slave ownership, a degree of self-rule the colonists did not have under the cumbersome rules which did not allow colonial legislatures to institute law without approval of the king.[xi] Although the history of America from 1765 to 1789 seems to be consistent with the flow of history towards self-governance and the advancement of human rights, at least as to the issue of slavery it can be seen as a victory in the perpetration of a repressive government.[xii]

The decision in Somerset’s Case should not need to be recounted here as if it is news. Clearly it falls outside the narrative taught to every school child which proffers only those events which trace the good American colonists reasonably responding to oppressive foreign rule. Americans barely consider the horror of slavery that existed not long before our own times and is certainly still reverberating now. Slavery was a defining American institution at the time of revolution and continuing to the Civil War. Yet, those that do speak of the blot of slavery as an unforgivable and unpunished national crime are often accused of living in the past, even as their accusers celebrate and dwell over simultaneous events. As I am certainly among those who count as blessings the great things that our founding fathers handed down to us through their bold experiment in government, I am queasy. Is there not a true history that each American must individually come to grips with?

Slavery in America

By 1776, it is estimated that the population of the American colonies was 2,500,000, of whom 500,000 were slaves. Virginia alone had more than 200,000 slaves.[xiii] The population of South Carolina was mostly slave, in some areas approaching approximately four/fifths slaves. With the institution of a new government friendly to the slave holder, by the start of the Civil War in 1860, the number of slaves in America reached approximately 4 million. These numbers must lead to a contemplation of the moral foundation of this new government and its supposed commitment to freedom.

Slavery was a barbaric institution and slave holders knew it to be such. That the institution was of questionable legality was made quite clear to them by the decision in Somerset’s case in 1772.[xiv] Whether slavery in the colonies was legal or not, cruel acts against slaves were technically illegal, yet largely unpunished. There is little doubt that slave holders were not charged in numerous cases of murder, assault, child abuse, rape, and child endangerment against their slaves.[xv] Slaves were not permitted to be educated, legally marry, and were denied any right to maintain a family.[xvi] Many slaves were literally worked to death, so much so that South Carolina needed a continuous new supply of slaves to work the lowland.[xvii] Still, we really know little of the horrors that were perpetrated in the many pretty houses of both the south and the north. One can always find cherry picked statements quoted by a series of apologists intending to prove that the founding fathers who were slave owners were good to their slaves, or wished for the end of slavery but at a future time.[xviii]  These were men who supposedly fought a revolution for the proposition that a human being must have a basic right of redress. I am an educated man and it is my sense that I learned little about slavery in America and I am convinced that this is an offense that has been done to me…with purpose.

Slavery in Great Britain

In England of the 18th century, there were various forms of indentured servitude, some quite barbaric. Yet, the idea that without cause and solely because of race a human being could be born a slave, live an entire lifetime as a slave, die a slave, and have children that were owned by their master and could be sold was foreign to Great Britain. By the mid-18th century London was a cosmopolitan city, where some free blacks found their place in the fabric of British life. At this time an aggressive anti- slavery movement developed in England around two issues; to eliminate the blot of slavery from the world focusing first on the proliferation of slavery in their own British colonies and, as an interim step, to eliminate British participation in the African slave trade.[xix] At least as to the elimination of the African slave trade there was some support even among slave owners in Virginia, who were now producing surplus slaves for the domestic slave market and had economic reasons for their seemingly altruistic position.[xx]

Despite the fact that slavery was not a recognized institution in England, American slave owners, being British citizens, had a nasty habit of bringing their slaves with them when they were conducting business in England.[xxi] In England, they treated their slaves as property in the same manner as they did in America and expected their contacts in England to do likewise. This naturally agitated the black population of England as well as many British citizens who were appalled by this conduct and by their implicit participation. By what right, they would ask, could one human own another anywhere, especially on the sacred soil of England? The Americans appeared to be confused since their conduct raised no questions in their homeland which was thought to be controlled by the same law. By 1772, both sides wanted the British courts to decide the legality of the practice of maintaining slaves while in England, presumably because they each were certain that their view of the issue would be upheld.

When the case was decided in favor of and freed the slave James Somerset, many were convinced the case would have limited import.[xxii] At most, it offered freedom only to that small number of slaves who were physically brought to England. It did not affect the right of British subjects to contract to buy or sell slaves. The Somerset decision did nothing to affect the participation of British subjects in the slave trade which was not made illegal until an act of Parliament in 1807.[xxiii] Slavery was not abolished in all the British colonies until the passage of Parliamentary acts beginning in 1833.[xxiv] Still, the decision was published in America and discussed in both the north and the south, by slave owners and slaves alike.[xxv] By 1773, with the situation in Massachusetts heading toward conflict over other issues, the decision in Somerset’s case, although having no effect as a matter of law in America, naturally could be interpreted in the south as an attack on a vital American institution. The south could not countenance this incursion, and the north was looking for friends or at least enemies of their enemies.

 

Patrick Henry (1736-1799)

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death![xxvi]

It must not have been easy to publicly declare one’s treason at a time when the question of American independence was yet unresolved. It was a capital offense.[xxvii] Patrick Henry clearly understood the value of freedom and in his rhetoric, at least, he places its value above the value of life itself. He risked his life by uttering those famous words.  Yet, as a slave owner, his use of the imagery of slavery in the speech as a metaphor for lesser inconveniences is truly abominable. It is simply bad rhetoric. Throwing God in there only makes it worse. There is a sickness to this speech, a sickness that seemed to pervade Virginian society in the mid 1770’s.

Patrick Henry was an ambitious Virginian who, as a young man, owned little land and few slaves. Much of Virginia’s tilled soil was dedicated to raising tobacco and suffered from mineral depletion due to the specific needs of that crop. Henry’s growing brood would eventually reach 18 children. Like many who were part of Virginia’s ruling planter class, his solution was to acquire new untilled lands. As uncultivated land to the west remained cheap although difficult to tame, the more a landowner was willing to exploit slave labor, the more land he could acquire and use productively. Henry acquired more slaves as he acquired more land.[xxviii]

Patrick Henry had the gift of oration which he eloquently used in 1765 as a new member of the Virginia House of Burgesses successfully speaking in favor of the repeal of the Stamp Act.[xxix] Although remaining as a legislator, neither he nor many in Virginia showed significant signs of dissatisfaction with Great Britain and certainly no revolutionary intent between 1766 and 1772. Biographers of Henry who fail to understand the significance of the decision in Somerset’s case in 1772, seem to be at a loss to explain the new found revolutionary spirit that seem to grip all of Virginia by 1773.[xxx] By the time Patrick Henry gave his most famous speech at the dawn of revolution in March 1775, the war was inevitable as was the leading role of Virginians. There were mercantile concerns relating to British rule in Virginia but, unlike in the northern colonies, these were largely mere inconveniences as the colony was growing ever wealthier largely due to its efficient use of slave labor and its sale of surplus slaves.  I submit that it could only be the real threat to the institution of slavery, embedded in the Somerset decision of 1772, which propelled this wealthy colony towards Revolution.[xxxi] One reason now given for Virginia’s move towards revolution was the proclamation by Lord Dunmore, the British Governor of Virginia, which promised freedom to slaves who fought on behalf of the British. But this proclamation was not issued until November 1775, after the Revolution had begun and months after Henry’s speech. While important in galvanizing some Virginians to war, it simply could not be a cause of the discontent in Virginia by 1775.[xxxii]

The best minds of Virginia were incapable of dealing with the reality of slavery.[xxxiii] The whole social system of a large part of the country was based on it. An economic system both in the south and in the north was fueled by it. In addition, the colonists thought they had real concerns should their foray into independence include freedom for their slaves. Where were the slaves going to go if they were suddenly pronounced free?[xxxiv] What was to stop freed slaves from murdering their former owners who, perhaps according to the decision in Somerset’s case, were now exposed as mere kidnappers? Perhaps the former slaves would try to steal their land.[xxxv] At the very least the cheap labor that fueled the economy would vanish. It was unimaginable to these men that a court thousands of miles away could know so little about their circumstances as to suggest that it was going to upend a social and economic institution that was clearly the engine of a productive society.

In his famous speech Henry demonstrated that he knew that it was evil it was for a person to be deprived of freedom. When considering the apparent contradiction between his freedom and the quest of his slaves for freedom he would join many of his times who would blame past generations of British rule.[xxxvi]  In reality, the contradiction could not be resolved because, to Henry and other white Virginians, freedom included the right to own slaves. This was obviously inconsistent with a slave’s right to be free. In his speech, Henry pledged to fight for his freedom but could not advocate for the freedom of others, and worse, took part in their enslavement. He was not just a bystander who was born into a corrupt system and did nothing to change it. There is compelling evidence that Patrick Henry saw the Virginia state militia first as a slave patrol and only subsequently as a revolutionary army.[xxxvii] Whatever one feels about his personal predicament, there should be a general consensus that the use of slavery as a metaphor in this speech is an abomination. It should only be repeated in classes on hypocrisy and bad oration. The man who gave it spewed nonsense and then went back home to his 60 to 80 slaves.

Thomas Jefferson (1743-1826)

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.[xxxviii]

It may be true that the issue of slavery plagued enlightened men like Thomas Jefferson. He was somewhat concerned about the plight of the slave and perhaps equally concerned with the depressing effect that slavery had on the industry of the slave holder.[xxxix] Yet, I suggest that much of early American History can be summed up by his simple observation…“For in a warm climate, no man will labour for himself who can make another labour for him.”[xl]  It has been said of Thomas Jefferson that in addition to tilling his fields, slaves…”cut his firewood, cooked and served his meals, washed and iron his linen, brushed his suits, nursed his children, cleaned, scrubbed, polished, and opened and closed doors for him, saddled his horse, turned down his bed, waited on him hand and foot from dawn to dusk…” [xli] His convenient solution to his dilemma over slavery was to first solve the problem of independence from England and leave the issue of slavery to be resolved at a future time.[xlii] Perhaps the less enlightened understood their situation better. To them, freedom from Great Britain in the 1770’s was the freedom to keep their slaves in light of the possible encroachment of British law.

In the years following the decision in Somerset’s case, Jefferson developed the philosophical underpinnings of his quest for independence. Perhaps he saw the decision as just another attempt by Great Britain to control the colonies and it furthered his purer motives towards revolution as a means towards self-government. More likely, as a slave owner and a member of the slave owning class who had no intention of living equally amongst freed slaves, his philosophies were influenced by his personal circumstance. That his world had been called odious by the supreme judge of his mother country must have contributed to his yearning to be free from such disrespect.[xliii]

Jefferson knew that his most infamous words as written in the Declaration of Independence were not true.[xliv] He owned numerous slaves and knew quite well that by any meaning of the words his slaves were not born equal to him, nor were they able to exercise their unalienable rights. As a slaveholder in a system designed to protect slaveholders, he knew that it was he who was alienating these unalienable rights, a failure of logic that he could never resolve.

Perhaps, as an architect, Jefferson understood that a government, like a building, can survive only if it built on solid rock in accordance with eternal principles of beauty and stability. He helped build a new government on those principles.[xlv] That is why the principle of equality he set forth in the Declaration of Independence has resonated throughout the ages despite the questionable nature of its inception.  Whether it is hypocrisy, self-delusion, or aspiration that motivated Jefferson is immaterial; the declaration of equality is a worthy embodiment of ideals from a flawed messenger.

As we return to Jefferson the man, we find him as despicable as the rest of us. I join with those who cannot give him a pass for owning slaves, the more so because he, like Patrick Henry, continually showed that he knew better.[xlvi] Like Henry, Jefferson often used slavery as a metaphor to describe his predicament as an aggrieved (though quite wealthy) British subject.[xlvii] Never in all his musings about the end of slavery did he perceive of a multi-cultural America; his plan was for ultimate freedom and deportation of a race that he perceived was not capable of participating in his view of a civilized society.[xlviii] That he was a product of his time is inexcusable because, perhaps by definition, great men find a way to be better than their times. He was a vital and integral part of an evil system that continued long after it should have and ended badly if one can say that it truly ended at all. While as a person I leave him in the mud, as a political theorist I give him his due. He wrote great truths which continue to inspire the best of us to do our best work. Then he went home to his approximately two hundred slaves.[xlix]

John Adams (1735-1826)

I constantly said in former times to the Southern gentlemen, I cannot comprehend the object; I must leave it to you. I will vote for forcing no measure against your judgments.[l]

History places John Adams in that group of colonists who did not own slaves or directly profit from slavery, and who personally abhorred the institution.[li] Yet the early history of the United States is replete with deals made by Adams to hold the union together on the backs of the toil of slaves. In virtually every important decision made in the cause of revolution and the establishment of a new country the slave holders wanted one thing…a path to insure that slavery would exist unfettered in the new country.  Adams had to compromise on only the one issue to move the cause of revolution forward. He is often credited with being the political force that kept the union together. Sometimes there is no line between politics and appeasement. There is little doubt that the Adams compromises on slavery enabled the institution to survive in the new country. While many in ignorance suggest that were it not for these compromises America, today, would live under British rule, there is no consensus on what would have happened had John Adams done the right thing.

In what became known as the first Continental Congress in 1774, it was John Adams from Massachusetts who sought allies in the cause of revolution from the Virginia delegation.[lii] There he authored the Declaration of Rights and Grievances which first put forth the notion that a Colonial legislative body had exclusive control over its internal policies. Although seemingly about taxation and trade, the Southern delegations must have been satisfied that their interests in regard to slavery were to be protected because slavery would be treated as a local, not a national issue.[liii] With southerners concerned about the ramifications of the recently decided Somerset case, the first resolution of the Continental Congress in regard to the colonists must have been comforting…

They are entitled to life, liberty and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.[liv]

In the Second Continental Congress in 1776, it was John Adams who put forth a resolution that indicated that all states should draft new and independent constitutions.  He saw this as a vital step towards self-government.[lv] It could now be seen as permission for a state to create the positive law permitting slavery anticipated by the decision in Somerset’s case as the only way that the institution of slavery could logically exist in a “free” society. While objecting, Adams agreed to the removal of any mention of the evils of the slave trade from the Declaration of Independence, supposedly due to objections from Georgia and South Carolina.[lvi] In negotiating the Treaty of Paris in 1783, Adams along with Benjamin Franklin signed off on the provision that required the British to return to America all former slaves brought to England and freedom by returning British soldiers. This provision in the treaty was in direct conflict with their freedom granted in the Somerset decision, a conflict which was never resolved legally. Despite the efforts of slaveholders, including George Washington, enforcement of this provision proved difficult in England and there is little evidence that many former slaves were “repatriated” as a result of this provision.

It is likely that a plan to eliminate slavery in America could have been forged by the founding fathers had Adams been so inclined. Perhaps South Carolina and Georgia would have balked and may have sat out the war. The reality was that there was nowhere for them to go. Even Virginia, the richest colony with the most to lose, faced a Hobson’s choice. By 1776, the British people and their government demonstrated greater anti-slavery sentiment than most Americans, who displayed little such inclination. The anti-slavery sentiment had now been expressed in the strongest terms by the British high court in the decision in Somerset’s case.  A unity of the southern colonies with Britain over the issue of slavery was increasingly impossible. Had a date certain been set for the elimination of slavery in America when it was discussed in 1776, and a reasonable plan been forged to resolve the issue, it is possible that the union would have held and the revolution would have proceeded.[lvii] There may have even been a ready supply of black soldiers yearning for freedom to aid the cause. It is impossible to say what would have happened to the Union had any real effort been made to deal with the issue of slavery in 1776. Clearly, the southerners wanted none of it and Adams did not care to see the bluff. Perhaps he even knew that the fear of the Britain anti-slavery movement would keep the south fighting in his revolution. Supposedly, Adams and Jefferson were comfortable with the idea that eventually the country would have to address the issue and abolish slavery. That did not happen for 85 years. That the Adams compromises lead to a country founded on hypocritical principles will always plague America. That the country treated its hardest workers as an enemy and their oppressors as its heroes remains a constant limiting factor in its present advance towards a more perfect union. That no person more than John Adams brought about this historic calamity is just sad. Perhaps his greatest achievement was not his participation in the creation of a flawed government, but in his nurturing of the great John Quincy Adams, a founding father who worked tirelessly towards the end of the scourge of slavery.

 

George Washington (1732-1799)

Who among us has the right to throw stones at this man? George Washington is perhaps the most revered man in the history of America and perhaps with many good reasons. There is little doubt that through his personality, he kept the spirit of the Revolution alive at its most perilous times. On the issue of his motivations and his approach to slavery, there is a mixed account. There is evidence that he treated his many slaves well and contrary evidence that he had them whipped for being unproductive. There is evidence that he grew to see that slavery must be abolished and contrary indications that he rarely thought of abolition and only thought to free his own slaves upon his death because they were too numerous for his land and were growing old and expensive to maintain.[lviii] It would be simplistic to assert that he bore the contradictions of the age and leave it at that. I reach the conclusion that he was the ultimate conservative…his fight was to keep a lifestyle that had served him well and, given the decision in Somerset’s case,  his ends could only be accomplished by freeing the colonies from the threat of British incursion into the institution of slavery and leaving it to Americans to address the issue. Unlike an intellectual like Jefferson, Washington was a pragmatic and decidedly earthly leader who, not surprisingly given his social status, cast his lot with the survival of the slave state. He too was not an innocent bystander who was born into a corrupt system and did nothing to change it. Washington, as president, personally took up the cause of slave owners in their startling pursuit of compensation or return of those former slaves who made it to freedom in England, and were arguably compelled to return to their masters in America under the terms of the Treaty of Paris.[lix] Perhaps the saddest thing I can say about all of American History is that I doubt that the wealthy and respected George Washington would have even contemplated revolution were it not for the threat to slavery in the Somerset decision.  Through the force of his personality he helped create a country out of nothing and then went home to approximately 200 slaves.[lx]

Constitution

By the time of the drafting and ratification of the Constitution, the proponents of legal slavery in America had already succeeded in guaranteeing that the institution would survive intact in the new country. During the ratification process, the issue of slavery arose as did many other issues, and it was the subject of a political solution just as all other issues. How so many great minds could let that happen will always be a mystery to me.

While many students of history are familiar with the horrible compromise in Article One that decreed that for purposes of taxation and representation a slave was to be counted as three fifths of a person, there has been less focus on the even more despicable provision in the constitution that was a specific response to the decision in Somerset’s case. Slave owners in the new country understood that if their slaves escaped to England they would become free pursuant to the decision in Somerset’s case. The same would essentially occur if the slave escaped to the largely ungoverned west, or to Canada.  The Southern states needed assurance that their slaves would not become free merely by escaping to a nearby state which abolished slavery, as Massachusetts had by 1783. Article Four Section Two of the Constitution of the United States, the first national Fugitive Slave Law, provided that assurance. Without a Constitutional Amendment, which did not occur until 1865, all citizens of the United States were bound to honor the rights of slave holders, even in states that might find the institution “odious”.  In essence then, a state could not make slavery illegal within its borders since the Constitution provided that a slave from another state within its borders would still be a slave and be subject to capture and return. Thus, by 1787, although the new country had based much of its system of laws on those of its former mother country, the decision in Somerset’s case had been blotted out of existence in American jurisprudence.

Conclusion

It has been noted that Jefferson built up and tore down his architectural masterwork at Monticello continually through his adult life. So too must we tinker with his other masterwork, the government of the United States. We have become a country with two histories, the revisionist one taught in our schools and the real history which reflects our gritty barbaric past.  It is often said that history shows that the arc of the moral universe is long and it bends towards justice.[lxi] I am not so sure. The sensible decision of the British High court in Somerset’s case existed for 15 years when the United States Constitution denied it as law for the new country.  The decision existed for 82 years when the United States Supreme Court issued the contrary repulsive Dred Scott decision.[lxii] It is not new for me to say that the human heart is capable of producing both good and evil. My study of history leads me to the inescapable conclusion that it always will.  I submit that the search for historic truth today is no less important to the soul of our nation than the quest for freedom was at our founding. The big problem perhaps is to discern a way to arm oneself with an accurate compass and the correct slingshot. Only then is it possible to continue the work that Lord Mansfield started with his fateful warning in the Somerset decision “…. fiat justitia, ruat coelum,” let justice be done, though the heavens fall.”

 

[i]See Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005) 9. I note that an actual text of the decision may not exist.

[ii] Extract from an oration at Rochester, New York July 5, 1852.

[iii] See website accessed 10/27/13…http://files.usgwarchives.net/va/jamescity/history/oldcapit.txt

[iv] Slave Nation, cited above, which explores the impact of the Somerset decision may be considered a work of revisionist history. I consider it perhaps the first book about American History which makes sense. Perhaps the books which fail to mention Somerset’s Case are revisionist history. Reporting the truth is not a race to see who reports first. Most references to the Somerset decision and its impact are taken from Slave Nation unless otherwise cited.

[v] Blumrosen and Blumrosen, 9.

[vi] After the Somerset decision, slave owners petitioned Parliament to pass a positive law legalizing slavery. It declined to do so. Blumrosen and Blumrosen, 12. See also Alan Taylor, The Internal Enemy, Slavery and War in Virginia, 1772-1832, (W.W. Norton & Company New York 2013) 21.

[vii] Bernard Bailyn, The Barbarous Years (Alfred A. Knopf New York 2012) 174-179.

[viii] Taylor, 22.

[ix] See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 33-49, 83.

[x] Beeman 69.

[xi] See Blumrosen and Blumrosen 21.

[xii] See Taylor 21.

[xiii] David McCullough, John Adams (Simon & Schuster, New York 2001)131.

[xiv] That Americans read and knew the significance of the decision is well documented in Blumrosen and Blumrosen, 33-55. See also, Taylor 21.

[xv] The slave narratives written both before and after Emancipation are perhaps the best firsthand evidence of the true horrors of slavery. The most well-known of these is the autobiographical Narrative of the Life of Frederick Douglass, An American Slave (1845). As brutal as his Narratives are, Douglass admits to pulling some punches to protect himself as he was a fugitive slave at the time of publication. The narratives were written by men and thematically deal with the subrogation and reclamation of manhood. The special concerns of female slaves remain unimaginable. See Introduction to the Signature Edition of the Narrative of the Life of Frederick Douglass, Dale Edwyna Smith (Barnes & Noble New York 2012).

[xvi] In his Narrative and later speeches and writings, Douglass came back to this theme numerous times. Without deemphasizing the oppression of the whip, Douglass continually argued that some horrors of slavery were more subtle but no less the result of abject cruelty.

[xvii] Blumrosen and Blumrosen 46.

[xviii] See Beeman 95. See also Thomas Jefferson’s Monticello website; accessed 9/9/2013. http://www.monticello.org/

[xix] Blumrosen and Blumrosen 4-5.

[xx] Blumrosen and Blumrosen 46. Taylor 22.

[xxi] Blumrosen and Blumrosen 3.

[xxii] Benjamin Franklin suggested that the decision freed one slave. Blumrosen and Blumrosen, 12-13.

[xxiii] Marika Sherwood, Britain, Slavery and the trade in enslaved Africans, Issue 12 of History in Focus, Institute of Historical Research of the University of London. Website accessed 9/3/2013 …http://www.history.ac.uk/ihr/Focus/index.html

[xxiv] Ibid.

[xxv] Blumrosen and Blumrosen 24. See also William C. Nell, The Colored Patriots of the American Revolution (Robert F. Wallcut, Boston 1855) as reprinted in The American Negro His History and Literature, Edited by William Loren Katz (Arno Press and the New York Times, New York 1968) 42.

[xxvi] Patrick Henry’s speech to the Virginia House of Burgesses, March 23, 1775. The precise words may be in doubt but not the power of the oratory. See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 66.

[xxvii] It should be noted that as a major participant in the first Continental Congress in 1774 Henry was already subject to conviction of a capital offense. Harlow Giles Unger, Lion of Liberty, Patrick Henry and the Call to a New Nation (Da Capo Press Philadelphia 2010) 94-95.

[xxviii] Unger 7, Beeman 26-28. See also Taylor 48.

[xxix] Beeman 35-37.

[xxx] Beeman 83. See also Blumrosen and Blumrosen 21.

[xxxi] I submit that as to this subject Slave Nation should be required reading.

[xxxii] See Taylor 23-24.

[xxxiii] As to Henry, see Unger 53.

[xxxiv] See The Editors of Newsweek Books, The Founding Fathers, Thomas Jefferson, A Biography in his Own Words, (Harper & row, New York 1974) 79. See also Roger G. Kennedy, Mr. Jefferson’s Lost Cause (Oxford University Press, New York 2003) 116-117.

[xxxv] Unger 51-53.Taylor 42.

[xxxvi] Unger 51.

[xxxvii] See Carl T. Bogus, The Hidden History of the Second Amendment, University of California at Davis Law Review, 31(1998): 309 at 335-338.

[xxxviii] The Declaration of Independence.

[xxxix] Editors of Newsweek 78, 79.

[xl] Editors of Newsweek 78.

[xli] David McCullough, John Adams (Simon & Schuster, New York 2001) 116.

[xlii] See Editors of Newsweek 79, 80.

[xliii] See Blumrosen and Blumrosen 30-32.

[xliv] It has been suggested that the word “created” was chosen over the word “born” to suggest that Jefferson was formulating a scientific or philosophical approach to the issue of race. It is lost on me. See Daniel J. Boorstin, The Lost World of Thomas Jefferson (University of Chicago Press, Chicago 1948, Third Edition 1993) 61. The better treatment of this issue is found in Blumrosen and Blumrosen at 137-139.

[xlv] See Roger G. Kennedy, Mr. Jefferson’s Lost Cause (Oxford University Press, New York 2003) 38, 39.

[xlvi] Boorstin concludes that Jefferson “played fast and loose with the concepts on which he built his own science”, 94, 97.

[xlvii] The Editors of Newsweek Books, The Founding Fathers, Thomas Jefferson, A Biography in his Own Words, (Harper & row, New York 1974) 49

[xlviii] Kennedy 116, Editors of Newsweek, 79. Taylor 42.

[xlix] Thomas Jefferson’s Monticello website; accessed 9/9/2013. http://www.monticello.org/. See also McCullough131.

[l] Letter from John Adams to Thomas Jefferson, 1821. See Joseph J. Ellis, Passionate Sage, The Character and Legacy of John Adams (W. W. Norton & Company, Inc. New York 1993) 138.

[li] McCullough 131.

[lii] Joseph J. Ellis, Passionate Sage, The Character and Legacy of John Adams (W. W. Norton & Company, Inc. New York 1993) 39.

[liii] After Virginia declared independence from England in 1776, it addressed the issue by defining “the black population right out of the body politic.” Beeman 102.

[liv] It is often noted that the concerns of the first Continental Congress are largely a restatement of the grievances set forth by the Stamp Act Congress in 1766. This is not true. While many concerns were the same, this provision is new.

[lv] Ellis, 65

[lvi] McCullough 134. Editors of Newsweek, 65.

[lvii] See Beeman 102.

[lviii] Most every biographer of Washington has a theory of his personal and political views on slavery. I suspect that he was more lenient than most but stories persist of cruelty to slaves at Mount Vernon, and that his replaced teeth were extracted from his slaves. For a general view see Chernow, Washington, A Life, and (Penguin Press New York 2010) 110-117.

[lix] See Chernow, 639; and James MacGregor Burns and Susan Dunn, George Washington, The American Presidents, Arthur M. Schlesinger, General Editor (Times Books, Henry Holt and Company, New York 2004). 109-110.

[lx] McCullough 131. See also Henry Louis Gates, Jr. George Washington’s Runaway Slave, Harry, posted on The Root; website accessed Oct, 26, 2013. http://www.theroot.com/views/meet-george-washingtons-runaway-slave-harry.

[lxi] Attributed to Dr. Martin Luther King, Jr., 1967 possibly originating with abolitionist Theodore Parker. See website… http://www.npr.org/templates/story/story.php?storyId=129609461.

[lxii] Scott v. Sandford – 60 U.S. 393 (1856).

Not White, Not Black…Purple

Not White, Not Black…Purple

“I spent my year on the roof staring up at the stars, Wondering if I was from mars…”

                                                                                                                         Graham Parker

As a supposed white guy who has been forever working on a novel with the tentative title of I AM BILL RICHMOND about America’s first black sport superstar, I feel somewhat qualified to comment about the current issue of racial identity in America. This issue reminds me of a friend I had in High School too many years ago who would insist that inside her heart she was not white, nor black, but more like purple.

I see three kinds of Americans. The largest group I will call the Copacetics. Most white Americans and many recent immigrants fall into this group. The Copacetics basically like America and like the world. They view America as the land of opportunity where with hard work anyone can attain their piece of the American Dream. They trust in the founding fathers and especially in the Constitution and when something in America needs fixing they see in her structure the political means to affect change. Their heroes include Washington, Adams and especially Jefferson. They’re motto is from Jefferson who provided that our government was and continues to be the guarantor of “life, liberty and the pursuit of happiness.”

The second group are the Destructivists. Although they profess to be political reformers they are really anarchists who would never be satisfied with any political system that does not cater to each of their individual whims. They come on both sides of the political spectrum, from tea partyers and religious fanatics to Communists and other radical leftists. Although some of their ideas may inform the common conversation about current issues, their inherent selfishness negates any usefulness they may spout. As a result the Destructivists in America are largely marginalized which is a good thing since when they do attract mainstream attention, as in the recent ascension of the Tea Party, the result is a polarization of the conversation which is inherently destructive to American society. Their motto is “don’t tread on me” as if when they push the world away from their door they will live in the Garden of Eden… It ain’t happening.

The third group, of which I am proudly a member, I will call the Cynics. We see the members of the Copacetics and wonder how they can believe all that bullshit. We see some of the founding fathers as little more than the slaveholders that they were, and other founding fathers as apologists and accommodators to the slaveholding class. We hold that the government they set in motion was rife with the destructive forces that directly lead to untold misery through slavery, oppression of Native Americans, and civil war. An impure institution set up by impure men. The America that has been delivered to us as their progeny is a lie and an illusion based on hundreds of years of bad history and that lie continues to make solutions to our problems elusive. We are not like the Destructivists; we do have a positive goal. It is our core belief that problems cannot be solved until they are understood in an historical context and that America just doesn’t get it. America continues to worship the very leaders and laws that continually got it into trouble. We believe that it is of primary importance to recognize the basic flaws of our founders and our government in order to find our common heritage. Then perhaps we will find real solutions to our common problems. I don’t think it is a big statement to say that most American blacks are Cynics like me. A Copacetic sees a dollar bill and enjoys the freedom to spend it as he/she sees fit. A Destructivist wants to burn it and everything that it represents even though that would leave him/her without a means for improvement. A Cynic wants George Washington to be recognized as an evil man who should be removed from the bill. Put a hero like Frederick Douglas or Clara Barton on it so that it can be spent proudly. Cynics do not hate America, quite the contrary they love the promise of America. Our hero is Abraham Lincoln who fought a war because it was the only way to fix America’s biggest problem. Our motto is “a house divided cannot stand”, and therefore we continually search our history and our conscience for the cancers that divide us to find ways to bring us together as one people.

Which brings me to the idea of racial identification. I have always had difficulty at gatherings of Copacetics. They seem to be living in a dream world with their talk of pretty houses and nice cars as if everything in the world is just as it should be. Perhaps I am jealous. It would be nice to wake up and find a world that I am copacetic about. I’m just not feeling it. So even though my skin is white (sort of) and my culture is white I cannot say that I identify as white because I do not share the primary bond of the group… that they are Copacetic. This does not mean that I identify as black. I did not grow up steeped in black culture and I know that I cannot begin to sense what being black in America is like. Still I think I understand why a white person, especially one with more access to black culture than I, might identify as black. Unfortunately, you cannot fix a lie with another lie so to the degree that there is deception involved I think it unfortunate, but still I have to refrain from judging what one person does in reaction to the feeling of estrangement from their own culture. I know it is a sad thing.

So I think about my high school friend and wonder if there is a way to for Cynics like me to turn purple. It would just say to others that we don’t belong with you and we want our own culture. Like in all cultures, I would enjoy identifying and spending time with like-minded people but it is hard as hell to find us under the present pigment limitations.

 

Improving Race Relations- For $23.30

Improving Race Relations- For $23.30

By Jerry Leibowitz

 

America is false to the past, false to the present, and solemnly binds herself to be false to the future.

Frederick Douglass, 1852[1]
He reacted to his deed with a shrug of his shoulders…

The Lonesome Death of Hattie Carroll   Bob Dylan 1964

 

Introduction

Historians write of slavery as one of America’s original sins, something we overcame with the civil war. Few describe slavery as a holocaust, which I suggest is historically more accurate. In the more than hundred years before the formation of United States of America and the nearly one hundred years after its formation, the ruling class subjugated millions of workers to forced labor based solely on race. Many generations of blacks were born into slavery, lived as slaves and died as slaves, never tasting “freedom”, “democracy” or “independence”. By definition those terms are universal or they are meaningless, they either exist or they don’t. A country where one fourth of its population was forced to create the wealth of its ruling class cannot meet any criteria to be labeled as a model of “free enterprise”. In the lowlands of South Carolina, where slaves were approximately four fifths of the population in 1776, “fascist”, or “police state” would be more appropriate labels. There is little doubt that slave workers were sent there to do backbreaking labor until they died; whether they would last a day, a week, a month, a year, or ten years. Many areas of South Carolina were considered too harsh for settlement, so the only whites there were taskmasters. There is no accurate history of South Carolina or other parts of the slave nation; the victims could not write it and the ruling class would not write it. The myths of early America as a bastion of free enterprise or democracy were born and bred in this Dark Age, a tale told by ignorants, repeated even today by many who should know better.[ii]

Since owning slaves was legal and common, a slave owner or task master had to cross the line from horrible into depraved before their conduct would warrant notice, and even the most egregious acts were tolerated or mildly punished. Of the many founding fathers who owned slaves not a single one faced any significant scrutiny for their behavior towards their slaves. In their time they were heroes of a revolution and their ownership of slaves was deemed insignificant in comparison. We continue to write our history from this point of view. We continue to use words like freedom, democracy, independence and free-enterprise to define a place where they did not exist. We continue to doom ourselves by repeating and believing this false history. Ask most white Americans today about slavery and the reaction will be something akin to a shrug of the shoulders.

Slave owners appear on American currency and coin currently issued by the United States Treasury.[iii] There is something unseemly about asking Americans to carry a legacy which honors anyone who participated in this part of our past. It is even more of an affront to the citizens of the United States whose ancestors were forced to live unspeakably brutal lives at the whim of those who claimed the audacity to own another human. Symbols matter and who we as a country choose to honor today speaks to who we think we are as a people. We cannot physically punish dead men but we can reconsider that which is left of them; their reputation. I propose here that we institute a 28 year ban on the issue of currency or coinage depicting anyone who owned slaves. At the end of 28 years at least some punishment will have been served and a review should be undertaken of any slave holder to determine if their benefits to our world outweigh their participation in our national holocaust and they can again be the source of national honor and worthy of being placed on or coins or currency. Perhaps we cannot change the past but in my mind there is little doubt that we can improve the present and future by better acknowledging and addressing some of the disturbing issues that separate us and restrain our quest for a more perfect union.

Andrew Jackson is on the twenty dollar bill.

It is thought that Andrew Jackson inherited about 9 slaves and had over 150 slaves when he died. It is estimated that he owned about 300 slaves during his lifetime. Among other tasks, his slaves undertook the backbreaking work of clearing out the land of Jackson’s legacy farm, the Hermitage. His slaves provided for Jackson’s growing wealth by working the land. [iv] Although an absentee owner, his periodic updates on conditions at the Hermitage included news that his slaves were dying at astounding rates, usually blamed on an unknown disease on not on the cruel acts of his overseers, who were known to be quite cruel.[v] Jackson also took a leading role in America’s other abomination, its unforgivable treatment of Native Americans.[vi]

Thomas Jefferson is on the nickel and two dollar bill.

By the time of his death Thomas Jefferson owned about 200 slaves. In addition to tilling his fields, slaves…”cut his firewood, cooked and served his meals, washed and iron his linen, brushed his suits, nursed his children, cleaned, scrubbed, polished, and opened and closed doors for him, saddled his horse, turned down his bed, waited on him hand and foot from dawn to dusk…”[vii]It is unclear if his most famous writing, the Declaration of Independence, was hypocritical, self-delusional or aspirational. Jefferson knew that his most infamous words as written in the Declaration of Independence were not true. He owned numerous slaves and knew quite well that by any meaning of the words his slaves were not born equal to him, nor were they able to exercise their unalienable rights. As a slaveholder in a system designed to protect slaveholders, he knew that it was he who was alienating these unalienable rights, a failure of logic that he could never resolve. It is often said that in his heart Jefferson wished for the end of slavery, recognizing it as an abomination. Yet, Jefferson had no desire to turn America into a multicultural society; his “problem” with freeing slaves was that there was no place to put all those newly freed and probably angry former slaves.[viii] Other than a bit of hand wringing, Jefferson accomplished nothing politically before, during or after his presidency to ameliorate the plight of forced labor.[ix]

George Washington is on the quarter and the one dollar bill.

Considered one of the wealthiest Americans at the time of the American Revolution, George Washington owned approximately 200 slaves. There is evidence that he treated his many slaves well and contrary evidence that he had them whipped for being unproductive. There is evidence that he grew to see that slavery must be abolished and contrary indications that he rarely thought of abolition and only thought to free his own slaves upon his death because they were too numerous for his land and were growing old and expensive to maintain.[x] Washington was not an innocent bystander who was born into a corrupt system and did nothing to change it. As president, Washington personally took up the cause of slave owners under the Treaty of Paris in their startling pursuit of compensation (reparations?) or return of those former slaves who made it to freedom in England during the American Revolution.[xi]

Whatever other merits these men may have had as people, as statesmen, or as writers, their ownership of slaves warrants some reconsideration of their reputation on a periodic basis. I question whether any of the three belong on the currency or coinage of the United States. At some point we must have decided that slavery was not that significant an issue in our history so as to taint its practitioners. Historians have participated in this whitewash. We are wrong.

 

Blaming the British

Ask the average intelligent American today about the justification for the ownership of slaves by some of our founding fathers and you will usually get an answer which somehow blames the British or Dutch for bringing slaves to America as early as the 17th century. This peculiar notion of slave owner as a victim of the times was developed and explored by Virginians in the 1770’s and was expressed in an early version of the Declaration of Independence.[xii] Historians have often pointed to Jefferson’s writings for the notion that some in the south believed that the issue of slavery would eventually be suitably resolved.[xiii] It is true that each of the three subjects of this piece inherited slaves. Each was born into a culture where slavery was not only tolerated but was the wealth creating engine of their society. Each was imbued with a notion that the freedom of existing slaves would wreak havoc on their economy and would create a security and social problem both for the former slave and the former slave owner. I find none of these points persuasive in any current analysis of their characters.

By 1776, it is estimated that the population of the American colonies was 2,500,000, of whom 500,000 were slaves. Virginia alone had more than 200,000 slaves.[xiv] With the institution of a new government friendly to the slave holder, by the start of the Civil War in 1860 the number of slaves in America reached approximately 4 million. This growth of slavery from 1776 to 1865 must lead to a contemplation of the moral foundation of this new government and its supposed commitment to freedom.

Slavery was a barbaric institution and slave holders knew it to be such. Whether slavery in the colonies was legal or not, cruel acts against slaves were technically illegal, yet largely unpunished. There is little doubt that slave holders were not charged in numerous cases of murder, assault, child abuse, rape, and child endangerment against their slaves.[xv] Slaves were not permitted to be educated, legally marry, and were denied any right to maintain a family.[xvi] Many slaves were literally worked to death, so much so that South Carolina needed a continuous new supply of slaves to work the lowland, turning parts of Virginia into a slave breeding enterprise.[xvii] Still, we really know little of the horrors that were perpetrated in the many pretty houses of both the south and the north. One can always find cherry picked statements quoted by a series of apologists intending to prove that the founding fathers who were slave owners were good to their slaves, or wished for the end of slavery but at a future time.[xviii] These were men who supposedly fought a revolution for the proposition that a human being must have a basic right of redress. Their inability to resolve the slavery issue at the inception of the new country led to the forced labor of millions of workers, the ignominious death of many, and ultimately to a brutal war which killed many of their descendants. It also led to the founding of a country based on hypocritical principles. Legal scholars continually argue cases based on the “original intent” of the Constitution as can be deciphered from these founding fathers. Dred Scott was such a case. The mistakes of those founding fathers who used their political will to insure that the Constitution permitted the continuation of slavery are continually being visited on us, their actual and adopted descendants.

The Decision in Somersett’s Case

There is no truth to the persistent historical theory that slavery was tolerated in early America out of ignorance that those who were owned were somehow not human and therefore suitable to be possessed like other property or livestock. Obviously, those many slave owners like Jefferson who used their slaves for sexual purposes did not see themselves as practicing bestiality or sexual deviance. In England in the mid-18th century, a movement developed which asserted the rights of slaves as human beings deserving of their freedom. This movement in the mother land was disconcerting and provoking to American slave holders since the King and parliament was the ultimate arbiter of American Law. Slave owners from America routinely brought their slaves with them when conducting their business in England, where there were servants but not slaves and a growing significant population of free blacks. English abolitionists led by Granville Sharp began “kidnapping” slaves from their owners and asserting their freedom in various English courts using various arguments. While many cases were settled for freedom and compensation, the Somersett case did not settle mostly due to the thought on both sides that they could not lose on the big issue of the legality of slavery on English soil.[xix] The case proceeded to the highest court of Great Britain and when Lord Mansfield was finally called to issue his decision in 1772, he ruled the obvious; that slavery was an odious institution inconsistent with natural or English law and could not exist where there was no positive law permitting it to do so and no such positive law had ever existed in England.[xx] The ruling class in the south did not have to take any action in response to the decision since each colony had passed positive laws concerning the legality of slavery thereby making the Somersett decision of little legal relevance.

 

While applicable only to the soil of England, the significance of the Somersett decision in Colonial America is under debate. There is a theory that the wealthy South would not have participated in the American Revolution but for their apprehension that continued British rule would eventually lead to a decision freeing slaves in America.[xxi] This theory does not fail for lack of logic, only for lack of actual proof that America’s founders specifically contemplated the significance of the decision.[xxii] It remains somewhat unexplained why wealthy British citizens so loyal to England in 1766 would become revolutionaries by 1775, since the South did not suffer from many of the indignities perpetrated in the North. It remains likely that their motives were not as pure as we attribute to them, and that the perpetuation of slavery was significant in their motivation. Self-rule was the antidote to any intrusion whether foreign or domestic. That the south would cling to the rubric of self-rule at all cost was proved later by the civil war. In any event, in 1772 the High Court of their motherland left no doubt that their slaves were human, their behavior was odious, and their institutional practice of forced labor was uncivilized, although perfectly legal. Perhaps, they may have rightly feared, one day soon they would be considered criminals by their motherland for their participation in such abomination. Revolution was a lesser evil.

 

The Gradual Emancipation Acts

The formation of the United States of America from the Stamp Act Congress of 1766 to the passage of the Constitution in 1787 includes a sad history of how slave owners managed to keep slavery legal through a revolution of thought about independence, freedom and democracy. Once the northern colonies, through John Adams, agreed to let the issue be considered as a local matter, the die was cast that the new America would remain a slave nation. In the mercantile north, where slavery was not vital to the local economy, slavery began to wane after the revolution as abolitionists petitioned for freedom of slaves in the courts, much like Granville Sharp had done in England in 1772. Pennsylvania provided the nation with a template to solve the slavery issue politically, with the passage of legislation in 1780 providing for the gradual emancipation of all slaves.[xxiii] New York, New Jersey, Connecticut and Rhodes Island ultimately passed similar legislation. But this template was not followed in the agrarian South which became more intransigent on the issue. The best minds of the Virginia, given so much credit for establishing the core principles of American democracy, could not or would not entertain a political solution. Perhaps they could perceive of no solution that would safely and fairly accommodate Southern slave holders. Any talk of ultimate liberation of all slaves in America at the forming of the new government, and there was such talk even in the south, never did have any traction politically.[xxiv] Instead, the new government repeated the horrors of compromises past, and included in its Constitution the three-fifths compromise of Article 1 Section 2, and the Fugitive Slave Act of Article 4 Section 2. So much for their original intent.

The 1780 legislation in Pennsylvania, entitled An Act For the Gradual Emancipation of Slaves, might be considered an insufficient document by today’s standards but it was a big step forward towards the elimination of slavery in Pennsylvania and in the other states that ultimately passed similar legislation.[xxv] The Act freed no slave, any current slave in Pennsylvania would remain a slave until death or manumission. The Act provided that no additional slaves could be brought into the state, and that any children of current slaves born after 1780 were free, except that they were to be bound as indentured servants to the masters of their mothers until they were 28 years old when they must be released. These children were technically not slaves and could not be sold as slaves. While imperfect and subject to amendment to fix loopholes, the Act did provide the template that led to the elimination of all slaves in Pennsylvania by 1847. It also must have provided some hope to a Pennsylvania slave child born after 1780 (an indentured servant) that the day would come when they would be free. Twenty eight years is a long time, but it is not a lifetime, at least not for some. It now seems just the right length of time to “punish” those slave holders who did not see fit to provide for any thought of freedom to those whom they enslaved.

The Replacements

I could easily come up with a long list of great Americans who could replace slave owners on our currency and coins for the duration of the 28 year period of banishment of the subjects of this piece. The richness and diversity of the land has given a spark to many great Americans who participated in and rose above the common American experience. Yes, I tried to be eclectic and broad minded, and to the best of my knowledge everybody here represents a great idea in American History without participating in abominable acts. I would be honored to hold any of them in my pocket or my wallet.

 

Nickel- John Quincy Adams

Quarter- Harriet Tubman

Dollar Bill- Clara Barton

Two Dollar Bill- Mark Twain

Twenty Dollar Bill- Frederick Douglass

 

Conclusion

I am not really so naïve as to think that this writing will improve race relations. I take my cue from Mark Twain who wrote Huckleberry Finn in 1885 to humanize a troubled issue at a time when ignorance and hate were deeply entrenched. As brilliant as that work was, it perhaps accomplished little. I also take my cue from my Passover Seder, where each year my family and friends recount a story of slavery which happened thousands of years ago. We learn that it takes more than a few generations for some damage to be repaired. It seems that many Americans, even the well-meaning, are trying to ignore our way out of a deep seated problem and it is not working. It astounds me that most Americans seem to not care about its past, preferring to preserve its myths as if they are sacred. America is such a beautiful place but we have to clean its blood soaked stains. Time by itself heals little and slowly; knowledge is the only cure. Tough issues must be discussed in a heartfelt manner at dinner tables, VFW halls, barber shops and bowling alleys by all who truly want a better America. America is not some ancient civilization where what occurred in the past doesn’t matter anymore. All of its past is recent past, a blip in the history of the world. Its experiment is still quite young, still quite promising. I cannot think of anything more American than having our leaders, even if they are dead, called to task for what they have done. Some price must be paid. I suspect that a great thinker like Jefferson would have it no other way. For just $23.30 some of those discussions, maybe quite painful ones, may begin to take place. Being true to our past remains our best and perhaps only hope for a true and just future.

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[i] Extract from an oration at Rochester, New York July 5, 1852.

[ii] Obviously there are many historians and many histories. Yet, even historians sensitive to the issue of slavery, such as many of the authors cited here, use words like “Freedom”, “Independence” and “Democracy” where it did not exist. For example, just because a document is called a Declaration of Independence does not make it a declaration of “independence”. As a personal note I offer that the “Give me Liberty or give me death” speech of Patrick Henry is perhaps the most hypocritical, obnoxious speech ever presented. Yet, he too, has been given a pass and been labeled a great patriot.

[iii] The same analysis should be applied to stamps issued by the United States Postal Service. Yet few use stamps today so at this point any changes to stamps while symbolic would not generate any useful thought.

[iv] See http://www.thehermitage.com/mansion-grounds/farm/slavery

[v] Robert V. Remini, Andrew Jackson and the Course of American Democracy 1833-1845 Volume lll, (Harper & Row Publishers, New York 1984) 50-51.

[vi] Jon Meacham, American Lion, Andrew Jackson in the White House (Random House, New York 2008) 54.

[vii] David McCullough, John Adams (Simon & Schuster, New York 2001) 116.

[viii] At best, Jefferson’s solution to the slave issue could be summarized as “anywhere but here”. See http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-gradual-emancipation, http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-colonization, http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-diffusion. See also Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124.

[ix] Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124. Jon Meacham presents a sensitive approach to Jefferson’s failure at 474-479. I am skeptical of Jefferson’s real commitment to the abolition of slavery where Meacham is not.

[x] Most every biographer of Washington has a theory of his personal and political views on slavery. I suspect that he was more lenient than most but stories persist of cruelty to slaves at Mount Vernon, and that his replaced teeth were extracted from his slaves. For a general view see Chernow, Washington, A Life (Penguin Press New York 2010) 110-117.

[xi] See Chernow, 639; and James MacGregor Burns and Susan Dunn, George Washington, The American Presidents, Arthur M. Schlesinger, General Editor (Times Books, Henry Holt and Company, New York 2004). 109-110.

[xii] This tawdry analysis was removed from later versions of the Declaration of Independence. See Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 105.

[xiii] See footnote 8.

[xiv] David McCullough, John Adams (Simon & Schuster, New York 2001)131.

[xv] The slave narratives written both before and after Emancipation are perhaps the best firsthand evidence of the true horrors of slavery. The most well-known of these is the autobiographical Narrative of the Life of Frederick Douglass, An American Slave (1845). As brutal as his Narratives are, Douglass admits to pulling some punches to protect himself as he was a fugitive slave at the time of publication. The narratives were mostly written by men and thematically deal with the subrogation and reclamation of manhood. The special concerns of female slaves remain unimaginable. See Introduction to the Signature Edition of the Narrative of the Life of Frederick Douglass, Dale Edwyna Smith (Barnes & Noble New York 2012).

[xvi] In his Narrative and later speeches and writings, Douglass came back to this theme numerous times. Without deemphasizing the oppression of the whip, Douglass continually argued that some horrors of slavery were more subtle but no less the result of abject cruelty.

[xvii] Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).46.

[xviii] See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 66.

[xix] See Stephen Underwood, The Black Must Be Discharged- The Abolitionist Debt to Lord Mansfield, HistoryToday Volume 31, Issue 3 1981 at http://www.historytoday.com/stephen-usherwood/black-must-be-discharged-abolitionists-debt-lord-mansfield. Note: The article includes a persistent reference to the notion that there were 15,000 slaves in England in 1772. My research indicates that that is the number of free blacks and that the number of slaves was insignificant.

[xx] See Norman Poser, Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013).

[xxi] See Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).

[xxii] I would like to thank Professor Poser for his emails which helped me clarify some thoughts appearing herein.

[xxiii] See http://www.portal.state.pa.us/portal/server.pt/community/empowerment/18325/gradual_abolition_of_slavery_act/623285.

[xxiv] Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124

[xxv] See http://www.portal.state.pa.us/portal/server.pt/community/empowerment/18325/gradual_abolition_of_slavery_act/623285.