Thomas Jefferson, Natural Law, and the Problem of Slavery during the Revolutionary Period

William G. Merkel, Washburn Law School

Abstract

Thomas Jefferson’s one-time image as a principled opponent of slavery has been heavily criticized for more than forty years. This article reassesses Jefferson’s early writings on legal and constitutional questions concerning slavery, and makes the case that the revisionists’ proslavery image is oversimplified and problematic. The article focuses on the first period of Jefferson’s professional and political life, when he practiced law in Virginia’s colonial capital Williamsburg, represented Albemarle County in the Burgesses, authored the Summary View of the Rights of British America (1774), and served as principal draftsman of the Declaration of Independence. After exploring Jefferson’s commitment to Whig readings of the common law, English history, and English constitutionalism, the article surveys Jefferson’s seven-year career as a property lawyer. It analyzes in detail Jefferson’s argument in Howell v. Netherland, a freedom suit appealed to the General Court of Virginia in 1770, and then considers his rhetoric respecting African slavery and alleged plans for political enslavement of British North America in his classic state papers the Summary View and the Declaration of Independence. The natural rights arguments Jefferson employed in Howell v. Netherland, the Summary View, and the Declaration of Independence reflected a philosophy essentially inimical to chattel slavery. At the same time, the nuanced understanding of estates in land that Jefferson developed as a student and practitioner caused him to think in terms of conflicting and multivalent interests in property instead of Romanesque conceptions of dominium or absolute and unconditional ownership. This historically conditioned understanding of property equipped Jefferson to question the propriety and defensibility of objectification of human beings. Later in life, when he took a leading role in forming the policies of the new American nation, Jefferson de-prioritized claims for African American liberty. But in the early 1770s, Jefferson, provincial slaveholder and common lawyer that he was, embraced progressive anti-slavery tenants as yet little different from those animating the nascent anti-slavery vanguard in England and the North.