Virginia Law Allowed Thomas Jefferson to Free His Slaves

There he goes again.
Nearing the anniversary of the largest pre-Civil War slave emancipation in U.S. history, David Barton is again claiming that Thomas Jefferson could not free his slaves because Virginia law did not allow it. He made the claim this week in a WorldNetDaily article out on Tuesday. Barton said:

“They [Louisiana Democrats] purportedly separated themselves from Thomas Jefferson because he owned slaves,” Barton told WND. “However, they ignored the fact that African-American civil rights leaders in the 18th, 19th and 20th centuries openly praised Jefferson for his repeated efforts to abolish slavery in the United States, and even around the world. They understood a reality that today’s shallow academics and uninformed activists ignore: Virginia state law did not allow Jefferson to free his slaves, despite his desire to do so. So he worked to free all slaves throughout all of the United States. Those efforts are worthy of commendation – something Louisiana Democrats refuse to do.” (emphasis added)

Barton and the author of the article Paul Bremmer are bothered by Louisiana Democrats because they renamed their annual Jefferson-Jackson dinner. The LA Dems said the move reflects “the progress of the party and the changing times.”
My point is not to defend the LA Dems; they can do whatever they want with their dinner. Rather, I want to point out again that Virginia law allowed slave owners to emancipate slaves after 1782, and many slave owners did so. With the 226th anniversary of the writing of Virginia plantation owner Robert Carter’s deed of manumission coming on August 1, it is a good time for the reminder.
Virginia’s law on manumission changed the law to allow slave owners to free slaves via a deed of manumission filed at the county court house or upon the death of the owner in a will. The entire Virginia law, passed in 1782, is reproduced at the end of this post (see also the laws of Virginia;  scroll to page 39).
Robert Carter used that law to free his slaves. In his deed of manumission (linked at the end of the post), Carter said the following:

And whereas I have for some time past been convinced that to retain them [slaves] in slavery is contrary to the true principles of Religion & Justice, that therefore it was my Duty to manumit them, if it could be accomplished without infringing the laws of my Country, without being of disadvantage to my neighbors & the Community at large: And whereas the General Assembly for the Commonwealth of Virginia did in the year seventeen hundred eighty two enact a Law entitled “an Act to authorize the manumission of slaves” now be it remembered that the said Robert do under the said Act for myself my heirs my Executors & administrators emancipate from slavery all such my slaves in the aforesaid Schedule (as are under the age of forty-six years) but in a manner & form as hereafter particularly mentioned & set forth. (emphasis mine)

In his deed, Carter set in motion a process to free all 452 of his slaves over time. Some slaves were children and had to wait until they were adults or could be released to their freed parents. Others were older and required support. Adult able-bodied slaves were able to be freed the most easily. However, he and other slave owners took advantage of this law that was on the books during Jefferson’s time as a slave owner.
Laws were later changed to make it more difficult and less practical to emancipate slaves but there was a window when many slaves were freed. Given Jefferson’s lavish lifestyle and resultant debts, it might have been difficult to free his slaves but it was not because Virginia did not allow it. For some reason, Barton persists in repeating this error.
If Barton wanted to say it would have been difficult for Jefferson to free his slaves, he could just say so. Instead, he misrepresents Virginia law in

Cover of Getting Jefferson Right, used by permission
Cover of Getting Jefferson Right, used by permission

such a way as to remove the responsibility from Jefferson. There were times when Jefferson could have freed his slaves and other times when he would not have been able to, but it is wrong to say Virginia law didn’t allow it.
If Jefferson wanted to free his slaves so badly, why did he send slave catchers after those who ran away? Why did he buy and sell slaves? Why did he revel in the fact that slave women having slave babies increased his investment and wealth? In my book with Michael Coulter on Jefferson, we go into Jefferson as a slave owner in some detail.

For more on Jefferson, slavery, and Virginia slave laws, see the following resources.

A Challenge to WND and David Barton on Thomas Jefferson and Slavery
Kirk Cameron vs. Paul Finkelman on Jefferson and Slavery
Jefferson and Slavery: A Response to David Barton on the Glenn Beck Show, Part One
Jefferson and Slavery: A Response to David Barton on the Glenn Beck Show, Part Two
Jefferson and Slavery: A Response to David Barton on the Glenn Beck Show, Part Three

Robert Carter and Virginia’s Law on Manumission

Robert Carter III: A Forgotten Hero David Barton Doesn’t Want You to Remember
More Evidence David Barton is Wrong About Jefferson and Slavery: Robert Carter’s Emancipation Deed
August 1 – Robert Carter Appreciation Day
A Deed of Manumission
Pre-1820 Virginia Manumissions (an archive of numerous records of slaves freed in Virginia during the time Barton said the laws didn’t allow emancipation)

Virginia’s 1782 Law on Manumission

 

CHAP. XXI
An act to authorize the manumission of slaves.
I. WHEREAS application hath been made to this present general assembly, that those persons who are disposed to emancipate their slaves may be empowered so to do, and the same hath been judged expedient under certain restrictions: Be it therefore enacted, That it shall hereafter be lawful for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county court by two witnesses, or acknowledged by the party in the court of the county where he or she resides to emancipate and set free, his or her slaves, or any of them, who shall thereupon be entirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom as if they had been particularly named and freed by this act.
II. Provided always, and be it further enacted, That all slaves so set free, not being in the judgment of the court, of sound mind and body, or being above the age of forty-five years, or being males under the age of twenty-one, or females under the age of eighteen years, shall respectively be supported and maintained by the person so liberating them, or by his or her estate; and upon neglect or refusal so to do, the court of the county where such neglect or refusal may be, is hereby empowered and required, upon application to them made, to order the sheriff to distrain and sell so much of the person’s estate as shall be sufficient for that purpose. Provided also, That every person by written instrument in his life time, or if by last will and testament, the executors of every person freeing any slave, shall cause to be delivered to him or her, a copy of the instrument of emancipation, attested by the clerk of the court of the county, who shall be paid therefor, by the person emancipating, five shillings, to be collected in the manner of other clerk’s fees. Every person neglecting or refusing to deliver to any slave by him or her set free, such copy, shall forfeit and pay ten pounds, to be recovered with costs in any court of record, one half thereof to the person suing for the same, and the other to the person to whom such copy ought to have been delivered. It shall be lawful for any justice of the peace to commit to the gaol of his county, any emancipated slave travelling out of the county of his or her residence without a copy of the instrument of his or her emancipation, there to remain till such copy is produced and the gaoler’s fees paid.
III. And be it further enacted, That in case any slave so liberated shall neglect in any year to pay all taxes and levies imposed or to be imposed by law, the court of the county shall order the sheriff to hire out him or her for so long time as will raise the said taxes and levies. Provided sufficient distress cannot be made upon his or her estate. Saving nevertheless to all and every person and persons, bodies politic or corporate, and their heirs and successors, other than the person or persons claiming under those so emancipating their slaves, all such right and title as they or any of them could or might claim if this act had never been made.

David Barton Tells Listeners Virginia Law Kept Slave Owners from Emancipating Slaves; Admits it Happened in New Edition of The Jefferson Lies

Yesterday, David Barton said again that Virginia law did not allow slave owners to free their slaves. He usually tries to make that case in relationship to Thomas Jefferson, but yesterday on his Wallbuilders’ program, he said George Mason could not free his slaves because of Virginia law.
At about 37 seconds into this clip from the program, Barton says Mason didn’t free his slaves “because in Virginia it was illegal for guys like him to release their own slaves.” Listen:

I have debunked this repeatedly (here, here, here, here, here) but it is worth pointing out that Barton tries to have it both ways in the new edition of his book, The Jefferson Lies. He says Michael Coulter and I are wrong about Virginia law but then he indirectly acknowledges we are correct by citing the case of Virginia plantation owner Robert Carter who began a process of manumitting his 452 slaves in 1791. In the second edition of The Jefferson Lies, Barton invokes Robert Carter’s act to free his slaves.

Perhaps the case of Robert Carter best demonstrates the overall complexity of the Virginia emancipation process. Carter, whose wealth was considerable and who had as many as 500 slaves, emancipated them all in 1791. Yet, due to the difficulties of his executor process, and the intricacies of Virginia slave laws, sixty years later in 1852 (and long after Carter’s death), his heirs were still working to free his slaves as per his original directive. When it came to emancipation, Virginia law was definitely convoluted and restrictive.
Barton, David (2015-12-22). The Jefferson Lies: Exposing the Myths You’ve Always Believed About Thomas Jefferson (Kindle Locations 588-592). WND Books. Kindle Edition.

In the new edition, he attacks me for being wrong about Virginia slave laws, but in another place he acknowledges that Virginia law allowed manumission. When discussing Virginian plantation owner Robert Carter, Barton acknowledged that Carter started the process of emancipation for his slaves in 1791. Some slaves were freed immediately, minor slaves were freed gradually as they attained adult status. Yesterday, however, he said Virginia prohibited “guys like” Mason from freeing his slaves.
Simply put, Barton originally claimed Virginia law did not allow Jefferson to free his slaves. He has said before and said again yesterday that Virginia law did not allow “guys like” George Mason to free his slaves. Mason lived until 1791 which was nine years after Virginia’s 1782 law allowing private manumissions. It might have been a hardship for Mason to do so but Virginia law did not make it illegal.
We demonstrated in Getting Jefferson Right that not only did Virginia law allow it for a period of time, some slave owners who were contemporaries of Jefferson and Mason did indeed free some or all of their slaves.  Barton even refers to one of our illustrations of a slave owner, Robert Carter III, who used the 1782 law to free his slaves legally but he still can’t admit that he misled his readers and yesterday his listeners.

A Challenge to WND and David Barton on Thomas Jefferson and Slavery

Late last night, World Net Daily published another “exclusive” promo piece for David Barton’s The Jefferson Lies. This one focuses on Thomas Jefferson’s relationship to his slaves and repeats Barton’s overconfident denial that Jefferson fathered any of Sally Heming’s children. We did not take up that claim in Getting Jefferson Right because there is no way to know for sure what happened.
However, the unknown author of the WND article then comes after me (and my co-author Michael Coulter without naming him). In his first edition, Barton selectively omitted a section of Virginia’s 1782 law on manumission which allowed slave owners to free slaves by going to the county court house with a “deed of manumission.” He claimed that Virginia law did not allow emancipation. Citing Barton, the WND article doubles down on that claim:

“Numerous historians of previous generations who sought for truth rather than political correctness affirm that the laws of Virginia did indeed forbid Jefferson from doing what he wanted to do throughout his long life: free his own slaves.”

Mr.Barton please name some of those “numerous historians.”
In fact, because of the 1782 law on manumission, many slaves were freed by their owners.
Barton continues:

But Barton says the situation was far more complicated, and takes on Throckmorton’s claim directly in a special section of the new edition. He argues Throckmorton seems to believe only one law governed emancipation in Virginia. In fact, he argues, there were many.

In Getting Jefferson Right, we deal with several relevant Virginia laws, not just one as Barton claims.

Barton asserts:

Because Jefferson suffered severe difficulties throughout his life, Barton says he would be exposing his slaves to possible re-enslavement if he tried to set them free.

Barton observed: “Particularly relevant to Jefferson’s case was a law requiring the economic bonding of certain emancipated slaves… Jefferson… was unable to meet the added financial requirements of that emancipation law.”

We never claimed that it would have been easy for Jefferson to free all of his slaves. We countered Barton’s assertion that Jefferson was not allowed to do so by Virginia law. In fact, there were some restrictions on emancipation for some slaves. On that point, the 1782 Virginia law enumerated the conditions (scroll down to page 39):

 II. Provided always, and be it further enacted, That all slaves so set free, not being in the judgment of the court, of sound mind and body, or being above the age of forty-five years, or being males under the age of twenty-one, or females under the age of eighteen years, shall respectively be supported and maintained by the person so liberating them, or by his or her estate; and upon neglect or refusal so to do, the court of the county where such neglect or refusal may be, is hereby empowered and required, upon application to them made, to order the sheriff to distrain and sell so much of the person’s estate as shall be sufficient for that purpose.

Males and females above 45, males under 21, females under 18 and disabled slaves required financial support. However, not all of Jefferson’s slaves fell in those categories. This provision of Virginia law did not prohibit emancipation. Furthermore, during this period of time, Jefferson voluntarily sold over 50 of his slaves to reduce debts, moving them from one condition of enslavement to another.

Barton and WND continue:

Another law applicable to Jefferson also stated, “All slaves so emancipated shall be liable to be taken… to satisfy any debt contracted by the person emancipating them.”

As Jefferson was, in today’s standards, millions of dollars in debt when he died, freeing the slaves might simply lead to them being taken by someone else.

The clause Barton refers to was passed as a part of a 1792 law. In full, the clause provided:

That all slaves so emancipated shall be liable to be taken by execution to satisfy any debt contracted by the person emancipating them, before such emancipation is made. (emphasis added)

Barton omitted the phrase in bold print. After 1792, a slave freed after an owner contracted a debt could be taken by authorities and sold back into slavery with the proceeds going to satisfy the pre-existing debt. However, if a slave was emancipated and then the slave owner went into debt, the slave could not be taken.

Two points should be obvious. First, this clause is a restriction but not a prohibition. Second, there was a ten year window when the 1792 restriction did not apply.

A third point isn’t as obvious because Barton doesn’t address what Thomas Jefferson did while some Virginia slave owners were manumitting their slaves. Jefferson continued to buy and sell slaves during this period. Jefferson even hired slave catchers to track down runaway slaves.

A Challenge to WND

Let me issue a challenge to Barton and World Net Daily: Allow me space to rebut these promo pieces. Stop misrepresenting my arguments and the evidence and link to this post. Right now, your behavior is a right wing version of the liberal bias you assert is true of the mainstream media. If you are so sure you are correct, then have the courage to back it up.

Robert Carter III: A Forgotten Hero David Barton Doesn’t Want You to Remember

Fred Clark at Patheos reminds us that today is the day that Robert Carter III filed his deed of emancipation at the Northumberland District Court in 1791.

Regular readers of this blog will know that Robert Carter wrote what he called a “deed of gift” that set in motion the largest emancipation of slaves in the United States prior to the Civil War. Carter’s deed listed 452 slaves to be emancipated throughout the remainder of Carter’s life. To see parts of the six page deed, click here. See the image below for the filing date.

 

Carter, a Virginia plantation owner, became convinced that slavery was morally wrong and put his beliefs into action. David Barton claims in his book The Jefferson Lies that fellow Virginia slave owner Thomas Jefferson was unable to free his slaves due to Virginia law. On the contrary, Robert Carter relied on the Virginia’s 1782 law allowing owners to emancipate slaves via a deed recorded at the county court house. Barton modified his claim somewhat on the Glenn Beck show in mid-August by saying that Virginia law required owners who freed their slaves to provide a security bond for their care. To date, he has produced no evidence for this claim.

Carter’s story is an inconvenient truth for Barton and his fans. In the sad history of slavery, Carter is a brighter light, a true hero of his times. Yet, until recently, there has been little attention to him. Andrew Levy’s book on Carter (The First Emancipator: The Forgotten Work of Robert Carter the Founding Father Who Freed His Slaves) helps to correct this but, on the other hand, Barton’s book on Jefferson serves to obscure Carter’s legacy. Levy’s observation about the place of Robert Carter in history is relevant:

It becomes difficult to argue that the founding fathers acted liberally within their own moral universe when small slave owners up and down the Virginia coast were freeing their slaves. It becomes impossible, however, to make that argument when one of their peers commits the same radical act. Similarly, the argument that there existed no practical plan for mass emancipation makes sense only if Robert Carter’s Deed of Gift is suppressed within the historical record.

David Barton claims his organization preserves America’s forgotten heroes. Robert Carter is one he might rather you forget.

August 1 – Robert Carter Appreciation Day

On August 1, 1791, Robert Carter wrote a deed of emancipation for 452 of his slaves. Although no slaves were freed that day, he set in motion the largest emancipation in the United States until the Civil War. Carter finished the six page document on August 1, and then filed it in the Northumberland Courthouse on September 5, 1791. You can read “the first day of August” in the oval below.

Carter was moved to consider freedom for his slaves after a move toward first the Baptist faith and then Swendenborgianism. He was a contemporary of Thomas Jefferson, although there is no evidence that they ever communicated about Carter’s act of emancipation.

Today, a group of ministers is meeting in Cincinnati to attempt to hold Thomas Nelson publishers accountable for printing a book that whitewashed the record of Thomas Jefferson on slavery. When David Barton declares in The Jefferson Lies that Jefferson was unable to free his slaves due to Virginia law, Barton obscures the virtue of men like Carter who went against the resistance of other slave owners who talked about liberty but didn’t provide it for all. Carter and other emancipation minded people in Virginia took steps against their own interests to do what was right. These stories need to be celebrated and remembered, not hidden due to misguided reverence for the founders.

Wallbuilder’s slogan is “presenting America’s forgotten history and heroes with an emphasis on our moral, religious and constitutional heritage.” In my view, Robert Carter’s deed of emancipation is forgotten history and Carter is a forgotten hero.

For more on Carter click here, here, and (especially) here.