In Getting Jefferson Right, we examine David Barton’s claims about Thomas Jefferson’s role as a slave owner and supporter of emancipation for slaves. Jefferson did make several efforts toward emancipation and spoke about the evils of slavery. However, there is another side to Jefferson as a slave owner that Barton whitewashes in The Jefferson Lies.

In the book we examine three main questions: could Jefferson have freed his slaves under Virginia law? Was Jefferson merely a passive slave owner? and Did Jefferson believe blacks and whites could live together? In this post, I am going to show one way that Barton obscures the truth about Virginia law in his book.

Here is what Barton claims about Jefferson:

If Jefferson was indeed so antislavery, then why didn’t he release his own slaves? After all, George Washington allowed for the freeing of his slaves on his death in 1799, so why didn’t Jefferson at least do the same at his death in 1826? The answer is Virginia law. In 1799, Virginia allowed owners to emancipate their slaves on their death; in 1826, state laws had been changed to prohibit that practice.

So according to Barton, Jefferson was unable to free his slaves while alive and couldn’t at death because of Virginia law. Is this true?

Not at all. In fact, Barton must know this because he cited Virginia’s 1782 law on manumission which made such emancipation possible. Well, he cited part of the law. Here is what Barton cites of the law in his book:

[T]hose persons who are disposed to emancipate their slaves may be empowered so to do, and…it shall hereafter be lawful for any person, by his or her last will and testament…to emancipate and set free, his or her slaves.

Now, here is the entire relevant section of the 1782 law on manumission:

[T]hose 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.

Note the second selection above in bold print. This is the relevant portion of the 1782 law Barton omits. This section allowed slave owners to release their slaves by filing a deed. Emancipated slaves needed a document which was recorded according to the law as proof of their status. This law allowed slave owners when they were alive to free their slaves, provided slaves were of sound body and older than eighteen if a female and older than 21 if a male, but not above the age of 45. Thus, Jefferson could have freed many of his slaves within the law while he was alive. In addition to The Jefferson Lies, Barton, in a recent radio program, emphatically stated that after 1782 slaves could only be freed at the time of a slaveholder’s death. Not only was Jefferson legally permitted to free his slaves, he actually freed two slaves in the 1790s, Robert (1794) and James (1796) Hemings.

In 1806, emancipation became more complex due to some law changes (read more about this in our book), Even so, there was a 24 year window when Jefferson could have freed a substantial number if not all of his slaves. What an amazing gesture it would have been for Jefferson to set his slaves free during his presidency.

Other slave owners set slaves free. In a dramatic example of manumission, Virginia plantation owner, Robert Carter III, planned for the freedom of 452 slaves beginning in September, 1791. Over the course of a decade, he emancipated all of them. A key historical work on Carter’s acts of emancipation is Andrew Levy’s The First Emancipator: The Forgotten Work of Robert Carter the Founding Father Who Freed His Slaves. Levy contends that Carter’s decision to free his slaves has been overlooked by historians because of the tarnish it brings to more prominent founders, Washington and Jefferson. Levy cites several historians who defend Washington and Jefferson’s practices as slave owners and then says:

Robert Carter’s Deed of Gift [document emancipating slaves as allowed by the Virginia law we cited but David Barton omitted], of course, does substantial damage to these arguments. 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…Joseph Ellis, in American Sphinx, notes that Jefferson could find “no workable answer to the unavoidable question: what happens once slaves are freed?” In fact, Jefferson was not looking for one. If the history of the founding fathers were written in a manner that accounted for Robert Carter, they might be that much less heroic, but they could be regarded that much fully as active agents in their own destinies, as men who made choices — who knew, as McColley writes, that “the Virginia statesmen who came out publicly against slavery would be very quickly retired to private life,” and who, as John Quincy Adams once said, “had not the spirit of martyrdom.”

Barton’s treatment of Jefferson certainly doesn’t take into account Robert Carter. Not surprising, I suppose, when Barton’s rendering of slavery in Virginia omits an inconvenient section of the law he quotes.

For more on this topic and many others, see Getting Jefferson Right: Fact Checking Claims about Our Third President.