This was a “pure” statement of the natural rights theory developed by Locke and others, which the colonists adopted late in their struggle with the British. Mason had faithfully restated the principles of natural law that were the foundation of colonial claims that Britain was attempting to enslave them.
The convention included members who had shouted down Richard Bland in 1769 when he had proposed a modest extension of slave owners rights to manumit their slaves. There were men who knew of the Somerset decision and that Virginia had thereafter called for committees of correspondence that led to the First Continental Congress, where the deal to protect slavery had been made with John Adams.
Some members of the Virginia Convention were aghast that, in their view, George Mason was encouraging slaves to rebel. The leading slaveholders at the Virginia Convention could not believe the language he had used. As the debate began on May 29, “all were struck with the force of the objection” made by Robert Carter Nicholas and others that the first article was “inconsistent with the state of slavery then existing in Virginia” to proclaim the equality of men in a “fundamental act,” for doing so would “have the effect of abolishing that institution.”17
One of their own appeared to be a traitor to their class. They filibustered against Mason’s draft for at least two days. The proposal clearly and unequivocally denied the basic principle of slavery, that children born of slave women “belonged” to their master. It also prohibited anyone from contracting into slavery “to deprive their posterity” of the named rights. Black slavery was hereditary through the mother. There was no ambiguity—no way around the plain meaning of these words. “They saw in the sweeping phraseology of the declaration that its adoption into the fundamental law would immediately emancipate the slaves.”18 And they would have none of it.
Richard Henry Lee was attending the Continental Congress in Philadelphia during the Virginia Convention. His brother, Thomas Ludwell Lee, wrote to him that:
A certain set of aristocrats—for we have such monsters here—finding that their execrable system cannot be reared on such foundations, have to this time kept us at bay on the first line, which declares all men to be born equally free and independent. A number of absurd or unmeaning alteration have been proposed, yet by a thousand masterly fetches and stratagems the business has been so delayed that the first clause stands yet unassented to by the Convention.19
Did Mason think that the slave owners who ruled Virginia would consent to this statement? We do not know. Mason, like Jefferson, Richard Henry Lee, Patrick Henry, and other colonial leaders, had pointed out the evils of slavery, but when faced with the reality of its importance, became impotent to take action against it. Why then present such a stark challenge to the Convention?
The answer lies in the issue that Mason was addressing— the colonial claims against England, which had begun as the claims of Englishmen but had become converted to claims under natural law that the British were out to “enslave” them. In that context, the words were a clear justification for separation from a Britain that sought to consume the riches from the colonies while ignoring their liberties.
But the slave holders at the Convention had their eyes clearly fixed on protecting slavery no matter what general principles of the revolution were involved. The intensity of their conviction in protecting slavery is ignored by some historians who focus on the contributions of Mason’s original draft to Jefferson’s proposed national declaration of independence, without addressing the hostile reaction to that draft in the Virginia Convention.20
During the first week in June, the Virginia delegates sought “to vary the language, as to not involve the necessity of emancipating the slaves.”21 There were those, such as Robert Carter Nicholas, who would have deleted Mason’s first principle altogether, as Thomas Ludwell Lee had suggested to his brother, Richard Henry. But wiser heads prevailed. The draft was already known to the public.22 To adopt it without the first paragraph would tell the world that Virginia intended to protect slavery at all costs. But it could not be adopted without change because slave holders feared correctly that it could be used to abolish slavery or encourage slave revolt.
We do not know how Mason argued the matter, if he did. He may have responded, as some did later, that slaves were excluded from the statement because they had no right to contract and therefore no rights under the clause —or that they were property and similarly excluded— arguments that were vague at best in light of the specificity in the language Mason had drafted.
Judge Edward Pendleton came to the rescue of the Convention. He was the shrewd Virginia judge who had balanced his distaste for the Stamp Act against his duty as a justice by trying to keep his court open in 1765. He also joined in the call for committees of correspondence in 1773.
During the debate, in late May and early June, the word “born” was deleted in deference to the hereditary nature of slavery, but the Convention was still unsure how to make clear that the declaration did not apply to slaves. Pendleton finally proposed at least one amendment which achieved this objective. His suggested inserting the phrase, “when they enter a state of society,” as a condition to the exercise of any of the rights that Mason had described. As a result, all men continued to be “equally free and independent”— the word “born” being already deleted. Their “natural rights” were no longer “natural” but were “inherent.” But these rights did not arise by birth, but came into being only “when men enter a state of society.”
This amendment answered the slave holders’ complaints, “slaves being no part of the society to which the declaration applied and the masters having control over when those outside should enter.”23 Until they had “entered” such a state, they had none of the rights that Mason had outlined. And finally, the door on the expansion of these “inherent rights” was slammed by striking the phrase “among which are” and replacing it with the phrase “namely,” making clear that no other rights could be considered inherent under the Virginia Declaration of Rights. Thus, Pendleton persuaded the slave owners that slavery would remain fully protected under the new constitution. With some other modifications —none of them touching the first paragraph—the Mason draft was adopted on June 12.24
Here is the Mason draft, with changes indicated. Deletions are italicized and in parenthesis, additions are in boldface.
All men are (born) equally free and independent and have certain inherent (natural) rights, of which, when they enter a state of society, they cannot, by any compact, deprive or divest their posterity; (among which are) namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.25
Modern scholars are satisfied that Jefferson had access to Mason’s draft, somewhere between June 6 and 12. Historian Joseph Ellis explained:
Throughout late May and early June couriers moved back and forth between Williamsburg carrying Jefferson’s drafts for a new constitution to the Convention and reports on the debates there to the Continental Congress.… Since we know that Jefferson regarded the unfolding of events in Virginia as more significant than what was occurring in Philadelphia and that he was being kept abreast by courier, it also strains credibility to deny the influence of Mason’s language on his own.26
Jefferson was appointed to a committee of five to draft the declaration on June 11. The committee met and outlined the contours of the declaration before Jefferson was singled out to prepare the draft.27 His appointment to the committee in early June would have focused the busy Jefferson’s mind on the events that were taking place at the Virginia Convention in Williamsburg. Since Virginia politics was his lifeblood, he would have paid close attention to the mutilation of Mason’s first paragraph. He and Mason were engaged in the same enterprise at about the same time, and he had “volunteered” his ideas about the shape of Virginia’s government to the Virginia Convention.
Jefferson’s appointment by the subcommittee to draft the declaration probably
took place on June 23, nine days after the Virginia convention had modified Mason’s draft.28 There were eleven days between June 12, when the final version was adopted by Virginians in Williamsburg, and June 23, when Jefferson was appointed to draft the national declaration of independence. When Washington, Henry, and Pendleton had ridden to Philadelphia for the first Continental Congress in 1774, the trip, with some delays, took five days.29 There was more than enough time for news of the final adoption of the Virginia Declaration of Rights to reach Jefferson as he began work on the national declaration. Jefferson prepared his draft and had it reviewed by Franklin and Adams between the 23 and the 28 of June.
Probably the most important information Jefferson obtained before he prepared his declaration of independence was the reaction of the Virginia Convention to Mason’s draft. The uproar by the slave owners and the ensuing modifications of Mason’s declaration sent Jefferson a warning. If he followed the Mason draft he could expect that southerners in the Congress would react exactly as they had at the Virginia Convention. They would demand that it be changed to protect slavery in unequivocal language. The slave-holding colonies could explode and show the world how disunited the colonies were. Such a reaction might destroy the nation before it was born.
When Jefferson studied the draft as modified by the Virginia Convention, he realized that he could not use it either. Mason had written that “all men are born equally free and independent.” This language—particularly the word “born”—had infuriated the Virginia Convention because it was a direct contradiction of slavery. There was no way to save the word “born” because it was so specific. But the words that remained, “all men are equally free and independent,” as a statement of fact was absurd. Some were well born, others were not, even if slaves were not considered. It would not do to start the declaration with an assertion that no one would believe.
Furthermore, the modification to Mason’s draft adopted by the Virginia Convention was seriously offensive to Jefferson. Pendleton’s modification—“when they enter a state of society”—blew a huge hole in the “natural rights” theory on which the revolution from Britain now depended. Rights did not flow from nature, rather they arose after some white men made a judgment about when other men “entered a state of society.” The phrase could not be explained as meaning that slaves were not in “society” at all because the purpose of the document was to establish principles for society that included slaves.
While John Locke relied on an analysis that began with hypothetical men in a state of nature, and from that, built a rationale for government to be based on the consent of the governed, the colonists turned the hypothetical state of nature into a present-day reality. The words “all men are created equal” or “born free,” are not introductions to a cause in political theory. They are an assertation of a present day reality or human aspiration. To carve out an unlimited exception from this assertion is to undercut the primary rationale for the Declaration of Independence.30
Jefferson’s assignment was to provide a consensus document, showing that America was united in its determination to be free. He had to be sure that his declaration did not meet the same fate as Mason’s.
The exclusion of slaves from the domain of natural rights, as was done in the Virginia Declaration, would be obvious to both the northern colonies and to Britain. The British would certainly accuse the Americans of seeking freedom to enslave blacks. Furthermore, the right of “obtaining and possessing property” would confirm the accusation, because it was well known that, to southerners, slaves were property.
This concept that slaves were property was dramatically expressed in the very Congress that proclaimed independence. In late July, 1776, Congress debated whether it should vote by colony or by some other measure. This led to a discussion of how state contributions to the federal treasury should be determined. One proposal was that the colonies contribute according to the number of “inhabitants of every age, sex, and quality, except indians.” Jefferson’s notes go on:
Mr. Chase [MD] moved that the quotas should be fixed, not by the number of inhabitants of every conditions, but by that of white inhabitants.…He observed that Negroes are property, and as such cannot be distinguished from the lands or personalities held in those states where there are few slaves.…There is no more reason therefore for taxing the southern states on the farmers head, and on his slaves head, than the northern ones on the farmers heads and the heads of their cattle.31
Rep. Thomas Lynch of South Carolina—one of the southern gentlemen with whom John Adams had associated at the First Continental Congress—added:
If it is debated whether their slaves are their property, there is an end to the confederation. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, etc.32 (emphasis added)
The inclusion of “property” in the declaration would have enabled the slave owners to base their claims to own slaves on the declaration itself. They could maintain that the Revolution was fought to protect their property in slaves.33 In fact, one petition against manumission of slaves in 1785 in Virginia did just that. It claimed that slavery was protected by the Virginia Declaration of Rights:
When the British Parliament usurped a right to dispose of our property, it was not the matter but the manner adopted for that purpose that alarmed us, as it tended to establish a principle which might one day prove fatal to our rights of property. In order therefore to fix a tenure in our property on a basis of security not to be shaken in future, we dissolved our union with our parent country, and by a selferected power bravely and wisely established a constitution and form of government, grounded on a full and clear declaration of such rights as naturally pertain to men born free and determined to be respectfully and absolutely so as human institutions can make them.34 (emphasis added)
The slave owners’ arguments for the maintenance of slavery would have been even more powerful if they had been rooted in an unalienable property right in a national declaration of independence. Jefferson knew that if he included the term “property,” he would protect the institution of slavery as it then existed.
This was not his position. In 1769, he had encouraged Richard Bland to move an amendment to Virginia’s law to permit the manumission of slaves. Jefferson seconded the motion. Jefferson recalled that Bland was “denounced as an enemy of his country and treated with the grossest indecorum.”35 In his “Summary View” in 1774, Jefferson presupposed that domestic slavery might be abolished in the future. Thus Jefferson was prevented by his own known position on slavery from copying the draft as adopted by the Virginia Convention. Jefferson knew he was drafting a document for public consideration abroad as well as at home. Had he included the term “property,” those opposed to the Revolution in both Britain and America would have immediately accused the colonies of seeking their liberty in order to oppress slaves. This criticism was in fact made concerning the remnant of Jefferson’s attack on the king for encouraging slave rebellion.
It is their boast that they have taken up arms in support of these their own self-evident truths—that all men are created equal, that all men are endowed with the unalienable rights of life, liberty, and the pursuit of happiness. Is it for them to complain of the offer of freedom held out to those wretched beings; of the offer of reinstating them in that equality which, in this very paper, is declared to be the gift of God to all; in those unalienable rights with which, in this very paper, God is declared to have endowed all mankind?36
Whatever one thinks of Jefferson’s views or actions concerning slavery over his lifetime, in 1776 he opposed the existing concept of slave property. In addition, he had proposed an end to existing property rights of primogeniture (real property held at death descended to the oldest son) and entail (real property held at death could not be divided), both of which contributed to the maintenance of the great slave plantations. He would not consciously write into a declaration language that would be used against the very reforms he had proposed
.
The alterations made by Virginia to Mason’s original draft suggested to Jefferson that its primary difficulty lay in its specificity. Jefferson solved this problem by using language that was more general, and therefore more ambiguous and less likely to appear objectionable.
For the word “born,” which had caused the first outburst at the Virginia Convention, he substituted the word “created” which did not specify the process of birth by a woman. This enabled Jefferson to return to his beloved natural law principles, and attributed the conclusion of equality to god or nature—“all men are ‘created’ equal.” What happened to them after they were created is not discussed. Thus he reasserted the creator—god or nature—as the source of the rights. Having elevated the source of the rights to god or nature, he could insist that this source had not necessarily exhausted itself in the creation of the specified rights. They were only “among these rights,” leaving open the possibility of recognition of other rights in the future. This was a fateful change: it empowered the nation, as it grew, to create new rights, mainly by legislation, which became as fundamental as those recognized in the declaration. Since then, America has created many important rights by statute, as well as expanding constitutional rights as we did in 1865 and 1920.
Finally, Jefferson solved the problem attached to the word “property.” He erased it, subsuming property in the generality of “pursuit of happiness.”37 By using the more abstract term “pursuit of happiness,” he did not embed slavery in the document expressing our national raison d’être. Balancing his views on human worth against the slave owners’ interests, he declined to enshrine slave property in the Declaration. The result was the language that still resonates around the world.
Slave Nation Page 11
