Nothing of particular excitement occurring for a considerable time, our countrymen seemed to fall into a state of insensibility to our situation; the duty on tea not yet repealed, and the Declaratory Act of a right in the British Parliament to bind us by their laws in all cases whatsoever still suspended over us.39
At nearly the same time, Adams wrote about the apathy of the people outside of Massachusetts: “Still quiet at the southward; and at New York they laugh at us.”40 By the end of the year, he was also worried about the people of Massachusetts. On December 31, 1772, he wrote to a friend, reporting that his health had returned and he had resumed his law practice.
The prospect before me, however, is very gloomy. My country is in deep distress and has very little ground of hope that she will soon, if ever, get out of it. The system of a mean and merciless administration, is gaining ground upon our patriots every day.41
During the calm, both men went about their personal, political, and professional affairs. In 1770, John Adams was elected a representative to the Massachusetts legislature. Adams moved to Boston from Braintree where he had been born. Riding circuit, he became one of the best lawyers in Massachusetts. In 1772, Abigail had their fifth and last child. The growing Adams family spent long days on the farm.42 However, John also managed to appear in more than two hundred cases ranging from animals straying into a neighbor’s yard to complex commercial matters. He also became more active in political matters. In 1773, when Governor Hutchinson of Massachusetts argued to the colonial legislature that there was no middle ground between parliamentary supremacy and independence, Adams framed an answer that, since Britain never intended the colonials to be slaves, they must be free.43
During the calm, Jefferson also lived the full life of a young lawyer. In 1770, his family home Shadwell was accidentally destroyed by fire, burning his books and papers. But he was already at work developing his new house at Monticello, and had begun courting the young widow Martha Shelton, whom he would marry on New Year’s Day, 1772.44 Their first child was born in late September of the same year. He was elected to the House of Burgesses and he handled complex cases, including a divorce case that challenged the supremacy of British divorce law over colonial legislation.
This case crystallized Jefferson’s thinking about the relation between Britain and the colonies. Jefferson had been preparing an argument to uphold a colonial legislative divorce. In this effort, he reviewed the basis for the English law concerning divorce.45 His preparation was aborted by the death of one of the parties. The issue of parliamentary control of divorce matters continued to brew in Pennsylvania, and was finally resolved that same year, against the colonial power.46
The research was not lost; Jefferson relied on it in developing his argument for independence published as his “Summary View” in 1774.47 His argument paralleled that of John Adams in the debate with Governor Hutchinson.48 It was a difficult argument because Britain had long claimed authority over the actions of the colonies under the original charters of the colonies. The colonial charters that gave each colony the power to adopt legislation contained clauses limiting that power to laws that were not repugnant to the laws of Britain. After the Somerset case, there was a prospect that Parliament might tax or abolish the “odious” institution.
The Declaratory Act of 1766 in which Parliament claimed total power over “all cases whatsoever” in the colonies was far more intrusive into colonial authority than the principle that the government could void laws repugnant to British law. This was the state of legal affairs that Jefferson considered a sword of Damocles suspended over the colonies.
Thus the reliance on the “rights of Englishmen” that had emerged during the Stamp Act controversy could not prevail under the Declaratory Act. Furthermore, the southern colonists knew that the senior spokesman for the British colonial administration during the Stamp Act crisis had been none other than Lord Mansfield, who had just declared the basis of their society to be “odious.”49
Parliament’s reaction to the Somerset proceedings was not reassuring to the colonists. It had refused to consider legislation protecting slavery in England during Somerset’s trial, following Lord Mansfield’s advice, and did not take it up after the trial was over. Presumably the people of England did not wish to legalize slavery there.
This treatment of colonial slave owners was in sharp contrast to that in France, where, despite occasional releases of slaves based on the “freedom principle,” French colonists had requested, and the government had agreed to, legislation which set conditions that allowed the colonists to bring their slaves to France and retain ownership of them.50 In the context of increasing colonial distrust of British actions and motives, and the growing belief that the British would not understand their need to be secure in their property, this turn-down by Parliament when compared to the French response on the same issue led many slave owners to make their slaves sign indentures, classifying them as servants, before taking them to England.51
Thus both the Court of King’s Bench and Parliament rejected the merchant’s demands for a decision protecting colonial slavery. To many thoughtful southern colonials, this was the last straw in a decade-long effort by Britain to usurp colonial autonomy. The following year, Adams would argue vigorously and successfully to base the colonists’ claims on “natural law” rather than on existing rights of Englishmen under British laws or colonial charters.
Jefferson and Adams both knew that the abstract declaration of the right of Parliament to control the colonies was a weapon that could destroy colonial aspirations to self-government and could shred the economy of each colony. They were not alone among those colonists who worried that Britain would treat the colonies as pawns in the international struggle for power with the French and as sources of revenue for Britain, rather than recognizing that the energies of the colonists could enhance the status of the British empire throughout the world.52 But now, after Somerset, the threat from the government in London was clearer, and if carried out would undermine the rich and powerful southern society dominated by the lawyerplanter-slave-owner political elite.
Chapter 3
* * *
Virginia Responds to the Somerset Decision
* * *
The Somerset decision, with its slap at the Virginians’ way of life, became the subject of serious discussion in drawing rooms during the fall of 1772. With limited mail service and few newspapers, the social exchanges at plantation houses provided the best occasions for people to talk about politics, exchange social gossip, and explore ideas among friends who shared their basic lifestyles.1 The slave-owner-planter-lawyer political figures met regularly at such affairs. Some visits and parties lasted days.
Slave owners, especially those who owned more than a few slaves, could never be completely at ease. There was an undertone that silently expressed the frustration of most slaves at the futility of their lives. In his book The Ruling Race: A History of American Slaveholders, historian James Oakes reviews the manuals developed to help slave owners promote efficiency in production through persuasion, threats, and punishment. He writes:
Loyal house servants and faithful mammies did not disturb the workings of the slave system; hostile slave laborers did, and there can be no question that in terms of the master’s perceptions, hostility prevailed....For the mass of field hands, daily life was a perpetual grind of hard work characterized by nearly universal hatred of the slave system and punctuated by periodic and often sustained acts of resistance. It was the resistance that made its mark.
Slaveholders complained that their bondsmen were impudent because they were impudent; masters complained that their slaves were lazy because they frequently would not work. By deliberate lassitude, by running away, by sabotage, slaves withheld their labor from the master. In effect, they were striking, and to some degree every master succumbed to the slaves’ demands. By planning their individual and collective acts of day-to-day resistance as deliberate responses to particular grievances, the slaves
were punishing their masters for mistreatment, neglect, overwork.2
As a result, the planters and their families were always conscious that their security, both personal and financial, was on shaky grounds. Stories of slave revolts, murders, and lesser violence were extensively discussed and dissected. Virginians knew that South Carolina had an 80 percent slave population. They thought that percentage dangerously high and wished to cut off further importation of African slaves, both to increase their own security and to improve their position as sellers of slaves. These insecurities informed their review of Lord Mansfield’s decision that slavery was “so odious” that it could exist only by positive law and was not protected by the common law. That Lord Mansfield would free fifteen thousand slaves in England, leaving the slave owners with no recourse to the courts, and that Parliament showed no interest in the question was appalling to them.3
Some historians have questioned the significance of the Somerset decision because in later years Mansfield disavowed the intent to abolish slavery and British courts held that if a slave brought to Britain did return to the colonies, his slavery reemerged and attached to him again.4 However, the decision was in large measure self-executing as slaves walked away from their masters and the masters gave up. Slavery virtually disappeared in England in the early nineteenth century.5 The importance of Somerset in the American colonies was the impression that the decision created in the minds of the colonist planter-lawyerpoliticians in late 1772, who could only read the words, not the future.
The attitudes of these men have been examined in depth by historian T. H. Breen. His thesis is that their perceptions of life were influenced by the nature of the planting process: that being known as a successful grower of tobacco was the pinnacle of personal achievement, giving meaning to their lives and assuring what they considered to be their independence.6
A far-off and highly placed judge in Britain had labeled slavery, on which the tobacco culture depended, “so odious” that British law would not recognize it. These planters must have taken his criticism as applying to the process of their lives. These proud and independentminded men were given a double wound: to their honor and to their independence, administered by a stranger who appeared to be ignorant about the fundamentals of life in colonial Virginia.
A deeper issue underlay the uncertainties created by Mansfield’s decision. Mansfield’s statement pointedly emphasized Parliament’s ultimate power over slavery in the colonies under the Declaratory Act of 1766 when he told Stewart that Parliament is the “best and perhaps the only method of settling the point for the future.”7 This statement meant that Parliament’s claim of total power over the colonies “in all cases whatsoever” included the institution of slavery. Thus the refusal of Parliament to consider whether to legalize slavery in Britain during Somerset’s trial, implying a lack of sympathy toward the slave owners, may have been as upsetting to the southern colonies as the Somerset decision itself. If Parliament would allow the abolition of slavery at home, without even hearing the plantation interests, how long would it be before Britain would meddle with or abolish slavery in the colonies?8
Lawyers would doubtless think that since Mansfield had declared slavery a disfavored institution, it could be more readily taxed by a regime that was seeking to milk the colonies for the benefit of the homeland. Thus they saw that the attack on slavery involved both colonial control of internal policies and taxation without representation.
In the fall of 1772, the planter-lawyers carried these fears from the drawing rooms to their offices and courthouses where they met. As lawyers pondered the Somerset decision published in southern papers, their concern increased. They put together three points of Mansfield’s reasoning in the Somerset case: (1) slavery was repugnant to the common law, (2) Parliament had the final say concerning the legality of slavery under the Declaratory Act of 1766, and (3) Parliament had claimed the power to tax the colonies in the same Declaratory Act. They realized that slavery was under a double-barreled threat from Britain, under the repugnancy clause and the Declaratory Act. After Somerset, slavery and the colonial life it supported existed at the will of an apparently unfriendly Parliament.9
Attempts to confine discussions of the Somerset decision to drawing rooms and law offices failed. The unobtrusive servants who appeared to be part of the furniture—after all, they were literally property—must have heard the irate slave owners complain about the decision. This incredible news led some slaves to decide to free themselves and go to England.
How did the slave owners and their lawyers react to these threats from the Somerset opinion? First, they thought long and hard about the policies, the practicalities, and the legalities of their situation. They could have done nothing and waited to see if their fears were well grounded. But they rejected this course: Lord Mansfield had long been a major political figure in England, as well as a distinguished judge, and his opinion appeared deadly serious.
Second, they could have sought assurances from Britain that it would cease meddling in their internal affairs—to transform their relationship with Britain from that of an inferior jurisdiction to one of a partnership. That would require the British to repeal the Declaratory Act, thereby agreeing to share sovereignty with the colonies. But they knew Britain would not agree to such a partnership.10 Sovereignty, in the British view, was a unitary concept. A nation either had total control over a territory or none at all. Since the Glorious Revolution of 1688, Parliament had solidified its power over the king, and in 1766 had asserted it over the colonies as well. Lord Mansfield was a firm believer that Parliament was, and had to be, supreme in the British Empire.11
Third, the southerners might seek to secede from Britain. There had been much talk during the taxation crisis of 1765–1770 that the British claim of the power to tax the colonies was the equivalent to holding the colonies in slavery.12 This image could—and did—naturally lead to thoughts of independence. As John Adams wrote later to Jefferson:
The revolution was in the minds of the people, and this was effected from 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington.13
A revolution would be most hazardous. Britain was the most powerful country in the world, both at sea and on land. Separation by rebellion was conceivable only if all the colonies—already chafing under British rule and worried about perceived threats to their liberty—were willing to unite in a rebellion that would secure the institution of slavery under an American government. The security the South needed was recognition of the complete freedom of each colony to conduct its internal affairs.
Would the northern colonies join in a revolution to protect southern slavery? The southerners were unsure. They did not know the northerners. Most colonists were provincials, attached to their colony and to Britain more than to each other. They certainly did not know their neighbors well enough to believe they would make common cause with the South to protect slavery. When the colonies had examined Benjamin Franklin’s Albany Plan for a defensive league against the French and Indians in 1754, they had all rejected it because it interfered with their internal affairs.14 The southerners did know that there was already some antislavery sentiment in the North. Although slavery was legal in all colonies, it was less prevalent in the North, particularly north of New York City where slaves provided much of the labor.
Northern attitudes toward slavery were ambivalent.15 Southerners may have heard that James Otis, the leading antislavery advocate in Massachusetts in the early 1760s, argued in the Superior Court of Massachusetts against “writs of assistance,” which were general search warrants. His argument included an attack on slavery as a violation of natural rights. In 1764, his pamphlet, The Rights of the British Colonies Asserted and Proved, stated, “The colonists are by the law of nature free born, as indeed all men are, white or black.”16 Southern papers had reported that, after the Somerset decision, there was dancing in the streets of Philadelphia.
On the other hand, some northerners had ser
ious interests in slavery that paralleled the southerners. Shipyards built the cargo ships for the slave trade and other commercial ventures in which New England’s bottoms transported not only slaves, but also the products they produced. Northerners captained and manned these ships and supported their families and local communities with their incomes. They also participated in smuggling that evaded the navigation acts, which required colonial goods to be shipped through British ports.
Astute slave-owner-planter-lawyer-politicians would not jump from the frying pan of the threat from Somerset into a fire of northern antislavery attitudes. The South would not join with the North to seek revolution without assurance that southern slavery would be left alone. The generation of brilliant Virginian political figures—perhaps the greatest in our history—would not be so foolish as to leave that question unaddressed. The South would seek liberty from Britain, but only if doing so would protect slavery at home.
One of the most perceptive historians of slavery during the Revolution, Donald L. Robinson, in his Slavery in the Structure of American Politics, 1765–1820, identified the tensions between northerners and southerners that existed in the early 1770s. To southerners, slavery was a necessity; to northerners steeped in a philosophy of natural rights, it was inconsistent and hypocritical. Robinson’s focus, however, was on the situation of the colonies in 1776, as the question of independence loomed large. But his analysis is equally applicable to the condition of the colonies in early 1773, once the Virginians recognized on the need for committees of correspondence to organize the colonies against the British.17
In the spring of 1773, Jefferson was still working on his “Summary View of the Rights of British America,” a short exposition of his theory of the origin of Virginia which brought him instant fame in the colonies.18 His basic premise was that Britain never retained power over the internal affairs of the colonies so neither the repugnancy clause nor the Declaratory Act could constitutionally establish British control over the colonies. He shared these views with his closest friends, the younger men in the House of Burgesses, as they considered how to address their fears of loss of slavery and their aspirations for the independence to protect it.
Slave Nation Page 4
