Slavery and the American Founding

The New York Times’ “1619 Project” is a series of articles published in 2019 to mark the 400^th anniversary of the first enslaved Africans to arrive in America. In an introduction to the series, New York Times Magazine Editor-in-Chief Jake Silverstein claims that slavery “is the country’s very origin.” He writes:

 

Out of slavery—and the anti-black racism it required—grew nearly everything that has made America truly exceptional: its economic might, its industrial power, its electoral system, its diet and popular music, the inequities of its public health and education systems, its astonishing penchant for violence, its income inequality, the example it sets for the world as a land of freedom and equality, its slang, its legal system and the endemic racial fears and hatreds that continue to plague it to this day. The seeds of all that were planted long before our official birth date, in 1776, when the men known as our founders formally declared independence from Britain.

 

These are powerful claims. “The 1619 Project” does not hide its desire to, in Silverstein’s words, “reframe the country’s history, understanding 1619 as our true founding.” The project’s creator and lead writer, Nikole Hannah-Jones, has also repeatedly echoed the claim that “1619 is our true founding,” specifically contrasting that date with 1776. After severe criticism from prominent scholars, New York Times editors silently removed this claim from the series, and Silverstein blamed its use on a sub-editor. But the Project continues to assert that America’s founders were slave-owning hypocrites.

 

American chattel slavery was an evil institution, and it is not unreasonable to criticize founders who participated in it. But many Founding Fathers never owned slaves, some of those who did freed them, and they passed numerous laws to put the institution on the road to extinction.

 

 

Slavery dates back to the dawn of human history. It has been practiced in every region, and it existed in America well before 1619, because Native Americans enslaved other Native Americans. The first enslaved African was brought to North America in 1619, but there were already enslaved Africans elsewhere in the New World. Indeed, even the 1619 Project acknowledges that of the 12.5 million Africans kidnapped from their home countries and brought to North and South America, only 400,000 of them, about 3.2 percent, came to what we now call the United States.

 

 

above: detail from stowage plan of the British slave ship Brookes under the regulated slave trade act of 1788 (public domain)

 

Great Britain’s North American colonies were not unique in permitting slavery. What was unique was the colonies’ legal oversight of the practice. When Massachusetts captain James Smith kidnapped two West Africans and brought them to Boston in 1645, the General Court considered charging him with “man-stealing,” citing the biblical prohibition in the book of Genesis: “And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.” The court decided not to try Captain Smith because the offense took place outside of the court’s jurisdiction, but it ordered the two men to be freed and returned them to Africa at the colony’s expense.

 

The Puritans permitted slavery in the case of “lawful captives taken in just wars, and such strangers as willingly sell themselves, or are sold to us,” but it was never widespread in the region. In 1700, enslaved Africans accounted for only 1.7 percent of New England’s population. Even so, in that same year the Puritan judge Samuel Sewall published the first anti-slavery tract in British North America, The Selling of Joseph: A Memorial.

 

The vast majority of 18^th-century Americans never owned slaves, but civic leaders tended to be wealthier than the average citizen and were more likely to own them. Of the 56 men to sign the Declaration, 41 were slave owners at some point in their lives. But only 25 of the 55 delegates to the Constitutional Convention ever owned an enslaved person. I discuss the anti-slavery activity of founders who never owned slaves below, but I’ll begin with the hard cases—founders who owned other human beings.

 

No founder defended slavery as a positive good, and even many slave owners were coming to oppose the institution. For instance, John Dickinson—“Penman of the Revolution” and a framer of the Constitution—was at one time the largest slave owner in Delaware. He conditionally freed his slaves in 1777, and manumitted them completely in 1786. On the other hand, James Wilson of Pennsylvania, a Founding Father and Supreme Court justice, only owned one slave, who was essentially a household servant. Wilson voluntarily freed him in 1794.

 

John Jay, the nation’s first chief justice, owned several slaves, but manumitted them all. When serving in New York’s constitutional convention of 1777, he attempted but failed to ban slavery in the state. Jay later helped found the New York Manumission Society and served as its president. Other members of this society included Alexander Hamilton, Noah Webster, Egbert Benson, and governors George Clinton and Daniel Tomkins. In 1799, while governor of New York, Jay signed a law gradually abolishing slavery in the state.

 

Benjamin Franklin was a member of the five-person committee that drafted the Declaration of Independence.  He owned a handful of slaves who worked as household servants between 1735 and 1781. Through the influence of the Quaker teacher Anthony Benezet and other abolitionists, Franklin came to oppose slavery and freed the last of his “servants” in 1781. He later joined the Pennsylvania Society for Promoting the Abolition of Slavery and for the Relief of Free Negroes Unlawfully Held in Bondage, and became its president. In 1790, he signed a petition to Congress requesting that slavery be abolished throughout the United States.

 

To their credit, the slave-owning founders discussed thus far freed their slaves. However, some founders criticized the institution but failed to follow through with action during their lifetimes. America’s first president, George Washington, for instance, wrote in a letter to Robert Morris that “there is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of [slavery].” Similarly, President James Madison lamented, “We have seen the mere distinction of color made in the most enlightened period of time, a ground for the most oppressive dominion ever exercised by man over man.” Another great Virginian founder, Patrick Henry, wrote to a Quaker who had freed his slaves, asking:

 

Is it not amazing, that at a time, when the Rights of Humanity are defined & understood with precision, in a Country above all others fond of Liberty, that in such an Age, & such a Country we find Men, professing a Religion the most humane, mild, meek, gentle, & generous; adopting a Principle [slavery] as repugnant to humanity, as it is inconsistent with the Bible, and destructive to Liberty.

 

Of these three, only Washington freed his slaves, albeit after his death.

 

If the founders were troubled by slavery, why did many slave-owners not free their slaves? In some cases, state laws made it difficult to do so. In other cases, slave owners were indebted and so could not free their “property” before satisfying creditors. But the main reason was likely that slave owners enjoyed the benefits of slavery so much that they rationalized their participation in it.

 

 

The first four laws in the United States Code are labeled “Organic Laws.” Three of these have important implications for slavery in the United States: the Declaration of Independence (1776), the Northwest Ordinance (1787, 1789), and the Constitution of the United States (1788). I’ll discuss each in turn.

 

 

above: detail from Scene at the Signing of the Constitution of the United States, oil on canvas, by Howard Chandler Christy, 1940 (public domain)

 

In 1776 the Continental Congress voted for independence on July 2, and on July 4 the body approved the Declaration of Independence. This document was intended to justify America’s break from Great Britain to the world.  Most relevant for the debate over slavery is the stirring proclamation that:

 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. 

 

According to Hannah-Jones writing in the 1619 Project, “the white men who drafted those words [in the Declaration] did not believe them to be true for the hundreds of thousands of black people in their midst.” 

 

The Declaration of Independence was a political document with multiple purposes. But throughout history, Americans have appealed to the principles articulated in it for a variety of purposes, including opposing slavery. It is certainly the case that the Declaration did not immediately free any slaves, but many of its authors were troubled by the institution.

 

Four of the members of the committee charged with drafting the Declaration went on to play important roles in opposing slavery. I have already discussed Franklin, and will turn shortly to Roger Sherman and John Adams. But what about its primary drafter, Thomas Jefferson? The Sage of Monticello never freed his slaves, but he did more to oppose slavery than is often realized. Indeed, Jefferson’s original draft of the Declaration condemned King George for his role in the transatlantic slave trade:

 

He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither… [he] determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce…

 

This section was eventually removed at the insistence of delegates from the deep South who had their own role in the transatlantic slave trade, but there is no question that Jefferson was troubled by slavery. The year after he penned the Declaration, he drafted a bill that would have banned the importation of slaves into Virginia. In 1785, he wrote Notes on the State of Virginia, a work the historian Kevin Gutzman calls “the most influential antislavery book of [Jefferson’s] age.” In Notes, Jefferson reflected on the theological implications of slavery:

 

And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest. 

 

Jefferson recognized that slavery was unjust, but in the same work he provided a list of reasons why emancipation was not a viable solution: “deep-rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions nature has made…” He was convinced that simply manumitting slaves would lead to constant fighting between African Americans and white Americans, if not an outright race war. Instead, he proposed to free the slaves and then to ship them “to such place as the circumstances of the time should render most proper.” He drafted a bill to achieve this result in Virginia, but it did not become law.

 

In an 1820 letter, Jefferson reiterated his support for “gradual emancipation and expatriation.” The notion that freed slaves should be “colonized” elsewhere was surprisingly popular among Southern leaders, but it was never a realistic possibility. Jefferson likely recognized this fact, which may be why in the same letter he observed that being a slave owner was similar to holding a “wolf by the ears, we can neither hold him, nor safely let him go. Justice is on one scale, and self-preservation on the other.” Jefferson understood that slavery was wrong, but he feared the consequences of emancipating the slaves. We may rightly criticize his inability to envision ways in which slavery might be ended peacefully, but we should acknowledge the actions he took to oppose the peculiar institution.

 

The Declaration of Independence was regularly appealed to by opponents of slavery. Indeed, within a few months of its publication, the African American preacher Lemuel Haynes wrote a pamphlet condemning slavery that begins by quoting the Declaration’s powerful claim that “all men are created equal.” Haynes quoted Scripture, that God “hath made of one blood all nations of men” (Acts 17:26) to argue that “liberty is equally as precious to a black man, as it is to a white one, and bondage equally as intolerable to the one as it is to the other.” Haynes’ pamphlet was not published in his lifetime, but many other anti-slavery tracts were. They regularly appealed to the sentiments expressed in the Declaration.

 

Sometime after his election in 1860, Abraham Lincoln penned a private set of reflections on the relationship between the Declaration and the Constitution. He observed that the Declaration articulated the principles upon which America was founded, and that the Constitution was intended to bring these principles into effect. He concluded his thoughts by using Proverbs 25:11 “a word fitly spoken is like apples of gold in pictures of silver” to compare the two.

 

To Lincoln, the “apple of gold” was the principles of the Declaration. The American union and the Constitution were the picture of silver framed around the Declaration. “The picture was made, not to conceal, or destroy the apple; but to adorn and preserve it. The picture was made for the apple—not the apple for the picture,” he wrote.

 

I believe that Lincoln’s Emancipation Proclamation in 1863 and his support of the 13^th Amendment in 1865 did much to help the nation realize the promises of the Declaration.

 

The second Organic Law relevant to slavery I’ll discuss is the Northwest Ordinance, one of the most important laws in American history. This statute passed by the Congress of the Confederation provided a process for creating new states out of the territory historians call the Old Northwest, namely Ohio, Michigan, Indiana, Wisconsin, and Illinois. The Ordinance stipulated that new states would enter the union on an equal footing with earlier states. In them religious liberty would be protected and slavery prohibited.

 

The Northwest Ordinance’s anti-slavery provision was authored by none other than Thomas Jefferson. Jefferson headed the congressional committee that initially considered what would become of the Northwest Territory. In 1784, it issued a “Report on Government for Western Territory,” written in Jefferson’s handwriting. Among the committee’s proposals was that “after the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said states…”

 

Jefferson’s committee report was incorporated into what would become the Northwest Ordinance of 1787. Like the report, the Ordinance stated that there “shall be neither slavery nor involuntary servitude in the said territory,” and made that provision effective immediately. As we will see, the Ordinance played an important role in convincing anti-slavery delegates to the Constitutional Convention to support the proposed constitution.

 

Twenty-five of the 55 delegates to America’s Constitutional Convention owned slaves, but some of these Founding Fathers—including George Mason, Luther Martin, Rufus King, James Madison, Gouverneur Morris, and John Dickinson—criticized the institution during the debates. The Morris family had owned slaves for years, but Gouverneur Morris opposed the practice. As a delegate to New York’s constitutional convention of 1777, he moved to abolish slavery because “[t]he rights of human nature and our religion loudly call upon us to dispense the blessings of freedom to all mankind.” His motion failed. At the Convention, he declared slavery to be “a nefarious institution…the curse of heaven on the States where it prevailed.”

 

Maryland’s Luther Martin, himself a slave owner, proposed allowing Congress to prohibit or tax the importation of slaves because the institution was “inconsistent with the principles of the revolution and dishonorable to the American character.” John Rutledge, to become the governor of South Carolina and a Supreme Court justice, and Charleston planter Charles Pinckney objected to this proposal, with the latter pointing out the political reality that “South Carolina can never receive the plan if it prohibits the slave trade.”

 

 

above: Roger Sherman, oil on canvas, by Ralph Earl, c. 1775 (public domain)

 

On the day following this exchange, Connecticut lawyer Roger Sherman suggested that the delegates leave the clause prohibiting Congress from banning the importation of slaves for 20 years “as it stands.” Notes from the Convention record his proposal to table the motion:

 

He disapproved of the slave trade: yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees complete it.

 

Many delegates opposed slavery, but they calculated that proposing a constitution that would not be ratified by Southern states would do little to end the institution. One reason they were willing to compromise on the importation of slaves is that only three states, North Carolina, South Carolina, and Georgia, still permitted it; the others prohibited it. But more significantly, many of the delegates were convinced that the states would voluntarily abolish slavery.  By the summer of 1787, six states had passed gradual manumission acts or ended slavery through judicial decisions, and a total of eight would do so by 1804.

 

The hope that slavery was on the path to extinction was stoked when the Confederation Congress enacted the Northwest Ordinance. Opponents of slavery were confident that, as the nation expanded and new free states were admitted on equal terms with existing states, the power of the few remaining slave states would be diminished. Oliver Ellsworth captured this sentiment well when he observed during the Convention that, “Slavery, in time, will not be a speck in our country.”

 

There is no question that the delegates in Philadelphia were aware of the Northwest Ordinance, as three of them, William Few, William Pierce, and William Blount, took a break from the Convention to attend the Confederation Congress, which was then meeting in New York City. Their visit provided a quorum that allowed the body to pass the Ordinance. Blount returned to Philadelphia on Aug. 7 and the Ordinance is mentioned twice in Convention documents and debates.

 

Politics is the art of the possible. Banning slavery was never a realistic option at the time of the Convention, but many delegates desired to at least prohibit the importation of slaves. Yet South Carolina’s Charles Pinckney was undoubtedly correct when he stated that his home state would never ratify a constitution that banned the slave trade or, by extension, slavery. Indeed, a constitution that banned slavery would not have been ratified by any Southern state, and thus would not have been ratified at all. Perhaps the Northern states should have simply gone their own way, leaving the Southern states to form some version of what would later become the Confederacy. It is hard to imagine, however, that this alternative would have been better for enslaved Africans in the South.

 

The men who drafted the Constitution seem to have been ashamed of slavery, as suggested by the absence of the word “slave” and its cognates in the document. Indeed, James Madison “thought it wrong to admit in the Constitution the idea that there could be property in men.” It was assumed that the “peculiar institution” would continue, as indicated by the Three-Fifths Compromise and the Fugitive Slave Clause. More positively, as a result of another compromise, the delegates agreed that Congress could ban the importation of slaves in 1808. At the urging of then-President Jefferson, Congress prohibited the importation of slaves as soon as it was constitutionally possible.

 

 

After the Declaration of Independence was approved, eight states abolished slavery or enacted gradual manumission laws: Vermont (1777), Massachusetts (1780), Pennsylvania (1780), New Hampshire (1783), Rhode Island (1784), Connecticut (1784), New York (1799), and New Jersey (1804). According to the historian Paul J. Polgar, as a result of these laws, decisions, and private manumissions, between “1790 and 1810, the rate of growth of the free black population in the United States outpaced that of enslaved Americans, making the trend toward black freedom more noteworthy than the spread of chattel bondage.” Space constraints prohibit an examination of each state mentioned above, but consideration of two of them allows me to highlight the actions of two last members of the committee that drafted the Declaration of Independence.

 

Connecticut lawyer Roger Sherman had been involved in the creation of the nation’s founding documents. In 1783, he accepted the task of revising all of Connecticut’s laws. He worked on that project throughout the summer and fall of that year, and the state’s General Assembly reviewed his work and approved the new state code in January 1784.  Among Sherman’s revisions was an act to amend Connecticut’s statute on slavery to free children born to slaves after March 1, 1784, when they reached the age of 25.

 

This gradual emancipation did not immediately free any slaves, yet it sped the decline of slavery in Connecticut. Between 1790 and 1800, the number of slaves dropped from 2,764 to 951. Some slaves may have been shipped out of state; a practice the legislature prohibited in 1788 with respect to children entitled to freedom at age 25 and for all slaves in 1792.

 

Massachusetts’ John Adams, like Sherman, never owned a slave. A member of Massachusetts’ Constitutional Convention of 1779, Adams is widely credited with being the primary author of the state’s 1780 constitution. Article I of the Massachusetts Declaration of Rights echoes the Declaration of Independence:

 

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

 

A year after the Massachusetts constitution was passed, a slave named Quock Walker sued for his freedom, citing the language of universal rights in the state’s document. His attorney, Levi Lincoln, contended that slavery was “contrary to the Bible and the declaration of rights in the Massachusetts constitution.” The Supreme Court of Judicature ruled that Walker was a free man. Later cases affirmed the ruling, and by 1790 the state reported that it had no more slaves.

 

Adams’ son, John Quincy, was the first person to follow his father to the White House. After his defeat by Andrew Jackson in 1828, he returned to the House of Representatives, where he was a fierce opponent of slavery. He is perhaps most famous for defending slaves who seized control of the Cuban slave ship La Amistad. Joined by Roger Sherman’s grandson, Roger Sherman Baldwin, he successfully argued for the slaves’ freedom before the United States Supreme Court in 1841.

 

On Dec. 27, 1819, John Quincy Adams wrote to a friend that he eagerly awaited the day when “the seeds of the Declaration of Independence” would mature and slavery would meet its end. The Declaration did not immediately end slavery, but it put it on the road to extinction—a very quick road in the case of Massachusetts.

 

Like all humans, America’s founders were flawed. Historical humility requires that we evaluate them as men and women of their time—not ours. We may properly lament the reality that they did not immediately and completely abolish slavery, but we should also recognize that many founders never owned slaves, some of those who did freed their slaves, and collectively they took multiple steps that they believed would put this vile institution on the road to extinction.

 

The 1619 Project’s original suggestion that America was founded in 1619 rather than 1776 is deeply flawed. The United States of America is a country founded on the propositions that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

 

The Founding Fathers did not always live up to their ideals, but they formed a constitutional order intended to secure them. Their descendants have, among other things, abolished slavery, eliminated Jim Crow legislation, and elected an African American as president of the United States. Racism is still a problem, but it would be a far worse one if the country had been founded on the principles of 1619 rather than those of 1776.

 

(Correction: the eighth paragraph of the original version of this article incorrectly said that John Dickinson was one of the signers of the Constitution.)