I didn’t want to turn my first posting on this topic into a book report on the Blumrosen’s “Slave Nation” because I find that when one does a book report, it’s easy to turn off the critical engine in one’s brain and just accept material without a close reading. “Look, I’m not going to read all of Jefferson’s correspondance…!” it’s too much.
I’ll leave that to the other historians who took years and did exactly that. But I’m also a paranoid skeptic, and I don’t know if the bits of correspondance that I’m seeing are carefully cherry-picked, or if they’re representative – or even downplaying a subject.
Fiat Justicia, Ruat Coelum*
What follows is from Blumrosen (in red) with my commentary in black. Links added without altering text. All errors are probably my typos.
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. His preparation was aborted by the death of one of the parties. The issue of parlimentary control of divorce matters continued to brew in Pennsylvania and was finally resolved that same year, against the colonial power.
The research was not lost; Jefferson relied on it in developing his argument for independence published as his “Summary View” in 1774. His argument paralleled that of John Adams in the debate with Governor Hutchinson. If was a difficult argument because Britain had long claimed authority over the actions of the colonies under the original charter 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 wa a prospect that Parliament might tax or abolish the “odious” institution.
I read the Summary View and it’s typical Jefferson of the period – arguing for freedom and rights of the colonists. It does presage some of the points raised in the Declaration of Independence, as well. Jefferson (as usual) goes on about how England is trying to regulate trade and (as usual) complains about taxes.
That the exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged, was next the object of unjust encroachment
Thomas Jefferson “A Summary View of the Rights of British America” (1774)
What “free trade” are the americans not being allowed to engage in? At the time, the restrictions of American trade were that the British were trying to crack down on tax-dodging smuggling and … slaving. The Gaspee Affair had occurred two years earlier: colonial smugglers who had been searched by a British customs schooner had reversed on it when it got stuck on a sand-bank, boarded it, and burned it. It’s important to realize that, in the mind of the colonial oligarch of the period, they were being oppressed by attempts by the British to collect the taxes that they had levied on the colonies under English law.
When Jefferson is complaining about “unjust encroachment” he is saying that “no law of their own” had levied the taxes on the colonists and that the British were preventing the exercise of free trade by trying to collect taxes on smuggled tea, rum, etc. If by “free trade” Jefferson meant “tax free trade” then he’s a red-blooded american like Donald “I don’t pay any more taxes than necessary” Trump.**
The colonists’ argument swirls endlessly around this issue of:***
- We didn’t make that law
- Therefore it doesn’t apply to us
- Therefore your taxes do not apply to us
- And if you regulate anything else that doesn’t apply to us, either
Every 14 year-old tries that legal maneuver on their parents at some point or another. To which the parent replies (as the British did) “It doesn’t matter if you believe in the law, the law believes in you.”
In the spring of 1773, Jeffersion 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. His basis 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.
I will note that Jefferson doesn’t attack the “repugnancy” issue anywhere in “Summary View” As I read that, I think perhaps the Blumrosens are spinning our interpretation of why Jefferson wrote “Summary View” – he complains a great deal about laws being inflicted on the colonies from without but it’s in the broad framework of the colonies being now used to having their own jurisprudence and being resentful of Parliament coming along and overruling colonial law at all.
That in order to enforce the arbitrary measures before complained of, his majesty has from time to time sent among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws: Did his majesty possess such a right as this, it might swallow up all our other rights whenever he should think proper. But his majesty has no right to land a single armed man on our shores, and those whom he sends here are liable to our laws made for the suppression and punishment of riots, routs, and unlawful assemblies; or are hostile bodies, invading us in defiance of law.
He is making an argument that the British cannot possibly reply to, namely that English law doesn’t even apply to the colonies. This is much broader than slavery; Jefferson is declaring judicial independence for the colonies, years before the colonies declared independence.
To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil powers, his majesty has expressly made the civil subordinate to the military.
In other words, “now that we have accepted that your laws do not apply to us, the things you have been doing are illegal.”
Blumrosen relates Mansfield wrote:
The congress sum up the whole of their grievances in that passage of the Declaratory Act which asserts the right of Great Britain to make laws which bind them in all cases whatsoever. They positively deny the right, not the mode of executing it. They would allow the king of Great Britain a nominal soverignty over them, but nothing else.
Blumrosen’s analysis continues:
As we have seen, both Massachusetts thinkers like Adams and Virginia thinkers like Jefferson had already developed a claim of “ancient legal and constitutional rights” that gave the colonies freedom to conduct their internal affairs without British interference. The assertion of such rights is inconsistent with the repugnancy clauses in colonial charters as well as the declaration of Parliament in 1766 claiming the right to govern the colonies “in all cases whatsoever.”
What I don’t see is a smoking gun; somewhere where Jefferson or Adams or one of the committees of correspondance say that “British law must be negated or we’re going to fall under the Somerset judgement and all our slaves will be free.” I’m sure that if the Blumrosens knew of such a statement, it would be front and center. We’re left with the claim that the colonial leaders had slavery in the back of their mind the whole time – and the Blumrosens enter into an analysis of the constitutional convention that has the division of power between northern and southern states balanced on the issue of slavery, as it was up to and past the eventual civil war. They argue that slavery was the deciding factor but I think they only convince me that it was a deciding factor.
Having sipped the heady wine of self-determination, the colonies weren’t willing to let Britain interfere with their private affairs. Those private affairs were many and included slavery as well as personal ambition, power and wealth for the newly arisen colonial political elite.
(* Mansfield, writing in his decision on Somerset V Stewart: “let justice be done, though the heavens fall.”)
(** Trump, like Jefferson, appears to have interpreted any taxes at all as more than necessary)
(*** This is basic anarcho-nihilism, in my view. Adopting Jefferson’s view repudiates the legitimacy of any legal system. Welcome aboard, Thomas. But even we nihilists**** have standards – free your slaves before you can get on our bus)
(**** I am not an anarcho-nihilist, but I’ll use that term for convenience now)