Season 3, Episode 7 | The Declaration and Slavery: The Question 1776 Could Not Settle

Did you know that Thomas Jefferson originally wrote a fierce condemnation of slavery into the Declaration of Independence, only for Congress to remove it before signing the final document? And did you know that in 1776, no one was certain whether slavery in America would fade away, transform, or expand?

In this episode of This Constitution, Savannah Eccles Johnston and Dr. Nicholas Cole, Pembroke College, University of Oxford, explore the complicated world of slavery at the time the Declaration was written. Together, they walk through why Jefferson’s anti-slavery passage was removed, how Americans understood slavery in 1776, and why the institution stood on a very uncertain foundation during the revolutionary period.

Dr. Cole explains how the Atlantic world, English legal rulings, gradual emancipation proposals, and the widespread reading of Montesquieu shaped early American thinking. The conversation also explores the financial barriers to ending slavery, the moral and religious arguments circulating in the colonies, and the troubling realities within slaveholder families, including Jefferson’s own. They then discuss figures like George Washington and John Adams and how their attitudes toward slavery reveal a more complex political and moral landscape than many assume.

This episode shows how the Declaration of Independence emerged from a moment filled with unresolved questions, intense debate, and moral tension. It challenges the idea that the founders were blind to the contradictions of slavery and highlights how close the nation may have been to choosing a very different path.

In This Episode

• (00:00) Introduction and episode setup
• (01:17) Jefferson’s stricken slavery passage
• (01:28) Physicality and emphasis in Jefferson’s draft
• (04:29) Context and debates on slavery in 1776
• (06:00) Legal and social shifts against slavery
• (09:20) Gradual emancipation and economic obstacles
• (12:53) Humanity vs. property: enslaved persons as ‘men.’
• (14:29) Changing racial attitudes and moral regression
• (15:38) Jefferson, Sally Hemings, and family complexities
• (17:47) Christian and moral arguments against slavery
• (19:09) Philosophical and legal arguments on slavery
• (21:10) Montesquieu, republicanism, and slavery’s contradiction
• (22:08) George Washington, Adams, and founders’ approaches
• (25:13) Slavery and the founding compromises

Notable Quotes

• (06:01) “Montesquieu said you can't really have a republic and slavery, and that the arguments in favor of slavery are illegitimate.” - Dr. Nicholas Cole
• (11:08) “But I think there is this real problem that so much money has been loaned in order to allow people to own slaves. And so that makes ending it very difficult.” - Dr. Nicholas Cole
• (13:14) “Jefferson knew his property consisted of men. He understood the moral weight of that contradiction.” - Dr. Nicholas Cole
• (23:41) “Washington does things as a slave owner that we would find utterly abhorrent, including rotating slaves from his household when he's president and in a state that doesn't recognize slavery.” - Dr. Nicholas Cole
• (24:37) “Maybe it's better to speak more about Washington and certainly Adams and less about Jefferson as kind of core founding fathers. Hopefully, we're more Washingtonian and more like Adams, the American political project, than Jefferson.” - Savannah Eccles Johnston
• (25:20) “If anybody had tried to use the convention to settle the question of slavery, there would have been no union. That is absolutely clear."- Dr. Nicholas Cole
• (26:19) “1776 is murky on the question of slavery, and this actually helps us understand the moment and the document and what it represents and what it led to understand that everything was kind of up in the air.”- Savannah Eccles Johnston

Transcript

This Constitution Season 3 - Episode 7

The Declaration and Slavery: The Question 1776 Could Not Settle

Intro:

[00:00 - 00:10]

We the people do ordain and establish this Constitution.

Savannah Eccles Johnston::

[00:10 - 00:16]

Welcome to This Constitution. My name is Savannah Eccles Johnston.

Savannah Eccles Johnston: 

[00:00:13 - 00:01:29]

Welcome to this Constitution. My name is Savannah Eccles Johnston, and today we have a very special guest, Dr. Nicholas Cole, who is a senior research fellow at Pembroke College at the University of Oxford. And he's hanging out here with us at Utah Valley University in Utah for a couple of days. So we thought we would get as many podcasts and speeches and lectures out of him as possible before he goes back to the other side. So today we want to talk about the Declaration of Independence and slavery. We want to situate slavery in 1776, around the same time the Declaration of Independence is being written. So, first, everyone knows this. There was a passage included in the original Declaration that Jefferson has written that includes slavery as one of the things we have against the King. And this is his passage. He says he has waged cruel war against human nature itself, violated its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere or to mere miserable death in their transportation thither. That's quite the indictment of slavery in the original Declaration. It's struck out by the rest of the Congress before they vote and sign it. Any speculation as to why before we place it in context?

Dr. Nicholas Cole:

[00:01:29 - 00:04:21]

Well, I think there's quite a lot to say, but sadly, we don't have a big speech that somebody gave. Wouldn't it be wonderful if we had a big speech recorded where somebody sort of stood up and said exactly why they wanted to strike this out? But we don't have that, so we're in the realms of speculation. It's sometimes really good to remember that the Declaration of Independence and even these initial drafts were these very physical objects. And we do know how Jefferson sort of wrote out that passage. I'm grateful to a colleague, actually, at a conference I was at just a few days ago, really pointing this out. Jefferson doesn't just write out these words neutrally. He sort of underlines the word men, referring to the people who were enslaved. And he puts some other emphasis in that passage. And really, even in the writing he uses. I mean, if he were doing it on a word phrase, let's say, you have to imagine it with the fonts. And for a Christian king of Great Britain to have done this and waged war on a people who never offended him. And he says sort of, if your listeners are interested in ever sort of looking up the manuscripts on the sort of archives that hold these documents, they'll see this handwriting. 

So it's really on the nose. It is a very angry passage. Now, it will be tempting to say, well, maybe the hypocrisy of the paragraph is just a bit much, coming from not only the pen of a slave owner, but to put into a document written by a group of people who were slave owners. So maybe the hypocrisy is just a bit much. But there's also a debate about the future of slavery in America post independence, which I think we might get into. And then lastly, to pin the blame for slavery on specifically George III, because the grievances are principally aimed at George III. That's a little bit of a stretch. And I think the Congress wanted the Declaration to land very cleanly as a very straightforward, unarguable account of American grievance. They wanted sympathy in Britain as much as possible. They didn't want their case for independence to be ridiculed. So there's a lot going on. And that passage makes it a bit more difficult, I think, for the Congress to imagine that the Declaration is going to land properly in Britain. Thematically, it fits really well with the other ideas in the Declaration of Independence. And I think if America had been able to resolve in that moment that there would be no more slavery in America, and if they had been able to really make the case that slavery in America had been the fault of George III and his immediate antecedents as king, then maybe it would have stayed in. But I think it's just too difficult in that moment. That would be my speculation.

Savannah Eccles Johnston: 

[00:04:21 - 00:04:52]

I actually think this is an excellent answer, that second part, this idea that you want to keep the Declaration very tight in its accusations, very provable. This is actually his fault. I think this is a really, really good speculation about why they struck it out. But then you also mention, no one's sure what's going to happen to slavery in 1776. I want to go there now. What is the feeling about slavery in 1776? It seems kind of tenuous. No one knows which direction it's going in. Can you map that out for us?

Dr. Nicholas Cole:

[00:04:52 - 00:08:44]

Sure. So slavery in the Atlantic world has come under sustained attack. An older generation of historians used to tell people that it was only after independence that the contradiction between republicanism and slavery became obvious to people. This simply isn't true. Montesquieu's spirit of the laws, which everybody who was educated claimed they'd read that work in 1748 in French and 1750 in English, has a long passage talking about the incompatibility of republican government and slavery and, frankly, ridiculing the arguments presented for slavery, Montesquieu does a really thorough job. So anybody that's claimed to have read the most widely read work of political philosophy in the Atlantic world in the era of revolutions has to be aware, or at least ought to be aware, if they really have read it, that Montesquieu, at least, who is supposed to be their guide for all kinds of good things like separation of powers and representation of the people and all of these other things. 

Well, Montesquieu said you can't really have a republic and slavery, and that the arguments in favor of slavery are illegitimate. So that idea is definitely out there. Then there's been a court case in England in the early 1770s, and the court has ruled that. That nobody may be held as a slave in England. So slavery is the law in the colonies, but there's no actual law in England allowing for slavery. So suddenly, it's hugely inconvenient for slave traders. They can no longer sail their ships up the African coast to England and then sail across to the Caribbean and the mainland. They have to go directly across the Atlantic instead, which incidentally, causes a lot of additional suffering. But that court case has really put on notice the idea that the common law does not protect the idea of slavery, even though a lot of people had thought that it might, but English courts have ruled that it doesn't. So you have to make a positive choice. You're going to have slavery in the law that's put slaveholders on notice. 

There's criticism of the Atlantic slave trade with, we would now call, I guess, a pressure group really advocating for the end to the slave trade, which is often seen as especially evil. So even if you think that slavery itself, maybe you could live with a lot of people taking the position that even if we can live with slavery, we can't live with the slave trade. Because there is something especially cruel about carrying people across the Atlantic, and it's fueling the further growth of the institution. And even the idea of buying and selling people is sometimes distinguished from the idea of just owning the slaves that you have inherited. So people have quite complicated moral positions that they take on all of this. And then some people who are fighting for the American Revolution itself, whether or not because they've read Montesquieu, they start to think that slavery is not compatible with republican government in the United States. So there's a great deal of uncertainty in that particular moment. It's not obvious to people that there are going to be southern states with slaves and northern states without slaves. People are talking about off ramps for slavery. They're trying to think of ways that the institution might at least gradually be destroyed. There are some legal maneuvers in the Atlantic world to end slavery. So in that context, in 1776, the future of this institution really does not look nearly as certain as it does in retrospect.

Savannah Eccles Johnston: 

[00:08:44 - 00:09:30]

Okay. And this is helpful because we often look back at some historical event and imagine it as inevitable. It was always going to happen the way it happened. But 1776, as you've explained, it's kind of on a knife's edge. You don't know which way slavery is going to go. They don't either. By the way, I think it's interesting what you said. Everyone's read Montesquieu, and Montesquieu has this long thing against slavery and the establishment of a republic. And you have Jefferson writing the Declaration, definitely having read Montesquieu, knowing he's trying to build a republic, knowing it's not possible with slavery. This is interesting, but you mentioned these off ramps, maybe a gradual end to slavery. Can you give us some examples? What would be an off ramp slave, instead of just banishing it immediately, 1776. What are some of the routes they were looking to to get rid of it slowly?

Dr. Nicholas Cole:

[00:09:30 - 00:09:43]

It's often the case that people come to this topic and they think, why couldn't the colonists just have done what was ultimately done? In the 13th amendment, you have a vote on slavery, you end slavery and you move forward.

Savannah Eccles Johnston: 

[00:09:43 - 00:09:43]

Right.

Dr. Nicholas Cole:

[00:09:43 - 00:12:53]

Wouldn't it have been better if Americans had done that? And of course it would have been better if Americans had done that. And in Massachusetts, for example, the courts there read the Declaration of Rights at the start of the Constitution and they say after a series of court cases, yes, slavery is incompatible and slavery just ends. The number of enslaved people in Massachusetts is relatively small compared to the number of enslaved people in somewhere like Virginia. So what are the problems? People are expensive. People are really, really expensive. Labor in any system, any economic system is expensive. So when we talk about people owning slaves, what we're often talking about is people who have taken out very long term debts on loans to enable them to buy a workforce. 

Now, if you simply say that slavery doesn't exist anymore, all of those loans are no longer secured on anything. And the labor that was supposed to pay off that loan doesn't exist anymore. So it doesn't feel like a very viable option to do that now. It's not always put in those terms, I must admit. In the 18th century and even in the 19th century. It's often put in the terms of the sort of moral right to property. You know, the state can't suddenly declare that property that was legitimately acquired no longer exists. But I think there is this real problem that so much money has been loaned in order to allow people to own slaves. And so that makes sending it very difficult. So what do you do? There are two other options. You can pay compensation to slave owners. This is what the British ultimately do in the 1830s when they finally make slavery illegal throughout the British Empire. They set aside an enormous sum of money to compensate slave owners for the freedom of slaves, effectively buy off the value. The other thing you can do, and this is what many new American states either actually do or think about, and even Virginia thinks about this is a system of gradual emancipation where you say, after this date, there will be nobody else will become a slave in this state, and anybody who is will. And then the arrangements vary. But perhaps continue for the rest of their lives, or perhaps continue for a certain number of years, a long number of years, 20 years or more. They will be indentured servants, so they will still owe labor, but they won't be enslaved. And that system of gradual emancipation is what many states adopt. But gradual emancipation takes a very long time. So even in northern states that we think of them as being non slave owning states, on the eve of the Civil War, many of them had only just seen the last of their enslaved people emancipated in the 1830s, 1840s, because it really does take a long time, if you go for this gradualist approach, for this to end the institution.

Savannah Eccles Johnston: 

[00:12:53 - 00:13:14]

And a lot of this is again about property or the value of persons. I guess the question we need to talk about first is in 1776, Jefferson, when he writes man, he underlines that, right? In 1776, did they understand these enslaved persons to be human man, not property man?

Dr. Nicholas Cole:

[00:13:14 - 00:14:29]

I think, yes, I'm sure, yes. A lot of the more racist language that people might have read actually comes from the 1820s and onwards, as positions really do harden in the South. So a Virginian in the 1820s probably couldn't have got away with the kinds of equivocation that a man like Jefferson is able to express in the era of the Revolution. I mean, Jefferson very famously says, we have the wolf by the ears. We can neither free him nor let him go. Acknowledging in his broader writing about this that slavery is a moral evil, both for the enslaved and the people doing the enslaving, but that he doesn't see an easy solution to it. Now, he writes in terrible terms that I'm certainly not going to quote on this podcast about his speculations, as he calls it, of racial inferiority. Even then, he's more tentative than somebody would have been in a subsequent generation. So I think he definitely does acknowledge his property to consist of men, and he's even related to some of them.

Savannah Eccles Johnston: 

[00:14:29 - 00:15:38]

Right. And we're going to get to that in just a second. But this point is an important one, because it's not until the 1840s, 1850s, that you will have Americans say they did not mean to include enslaved persons or people of African descent as being human. Of course, Lincoln will say, find a single piece of writing for from before three years ago where someone said that. So, one, this is good proof for Lincoln, and two, it also shows that Lincoln was correct about a kind of moral regression. The longer you live for Lincoln next to this kind of moral tragedy, the more accustomed you get to it. So, as you say, 1720 is a different time and understanding of slavery than 1776 and certainly than 1830 and 1860, that there is a kind of moral regression in the nation. But let's complicate the picture a little bit more. Let's go back to what you just said about Jefferson and being related to some of these people. There are strong arguments against slavery in the 1770s. One of the strongest is the Christian moral argument, and it is deeply tied to this issue of relation. Can you lay this out for us?

Dr. Nicholas Cole:

[00:15:38 - 00:17:47]

As people may know, one of the people that Jefferson owned was a woman called Sally Hemings. We have no writings from Sally Hemings. We don't even know what she looked like. And Jefferson had children with her over a long period. And the historian Annette Gordon Reed has written about this over the last 25, 30 years and really mapped this out and thought about the subsequent history of those children. In fact, Sally Hemings was not any other enslaved woman on Jefferson's plantation. She was his deceased's wife's half sister. In other words, her father had been her owner. And when Jefferson acquired many of his slaves through marriage, she came into Jefferson's household, too, and some of her children. And Annette has really traced this out. Some of her children and grandchildren passed as white and moved to the North. I think one of them fought in the Civil War, and some of them didn't. So this is a very complicated picture. And Jefferson is not unique in any way. This is part and parcel of many experiences of slavery, as distasteful as it is. And when escaped slaves wrote narratives like Narrative accounts of their lives, wrote accounts of being enslaved in the South. They often focus on how unnatural this is, that they may be related to the people who are enslaving them, and how unnatural it is to try and even think about family in this environment. This also is one of the reasons that Parliament takes an interest in slavery when it has commissions to look at the slave trade in the early 1800s and then later in the 1830s when it's considering this issue. One of the things that appears to really offend the sensibilities of Parliament is being confronted with all of the immoral behavior that surrounds the institution of slavery.

Savannah Eccles Johnston: 

[00:17:47 - 00:18:16]

Right. So you have two issues here related to the family. The first is that black marriages or marriages between enslaved persons, I actually don't know what the legal status was for free peoples, are not considered legitimate. They're not recognized, which means that enslaved man cannot perform his Christian duties as a father. So that's problem number one. You've destroyed the family there, but then you're also destroying the enslaved owner's family.

Dr. Nicholas Cole:

[00:18:16 - 00:18:17]

Correct.

Savannah Eccles Johnston: 

[00:18:17 - 00:18:23]

Because of the infidelity involved there. And bring into that power dynamics and et cetera, et cetera.

Dr. Nicholas Cole:

[00:18:23 - 00:18:39]

And quite a lot of violence. Quite a lot of violence, for example, perpetrated by women on other women in this environment. I mean, one can imagine all of the jealousies and emotions that are clearly going to exist in this kind of environment.

Savannah Eccles Johnston: 

[00:18:39 - 00:18:54]

Right. It's also difficult to speak about that first family being torn apart, the white family being torn apart by infidelity, because it's not really infidelity. That seems to mean that there's two consensual people on either side. That's not what. What this is. That's not what we're talking about.

Dr. Nicholas Cole:

[00:18:54 - 00:18:55]

No.

Savannah Eccles Johnston: 

[00:18:55 - 00:19:04]

So this is the strong moral argument against slavery. And it's certainly in the air. In 1776, Jefferson would have heard these kind of arguments.

Dr. Nicholas Cole:

[00:19:04 - 00:19:05]

Correct.

Savannah Eccles Johnston: 

[00:19:05 - 00:19:09]

Against slavery. All right. What other arguments are there in the air?

Dr. Nicholas Cole:

[00:19:09 - 00:21:09]

Well, so the argument that slavery is morally corrupting we've talked about, but it's morally corrupting as well. Not to labor for yourself. So there are religious arguments to say that this is not a good way to organize your life. There are arguments that attack the legitimacy of the institution on legal grounds. So there are some very ancient arguments in favor of slavery, because up until the era of the American Revolution, most societies for most of human history had accepted slavery as a matter of course. So there is literally thousands of years worth of thinking on the legitimacy of slavery. And one argument, for example, was that captives in war and their descendants could be legitimately enslaved. This is an argument that Montesquieu, for example, attacks. 

Another very ancient argument is the idea that slavery might be mutually beneficial because maybe some people better at being masters and some people are better at being laborers. And that slavery in some way recognizes this as the so called idea of the natural slave. And it gained some currency in the South. Jefferson even toys with that as an idea. But other people, including for example, Montesquieu, say this idea is nonsense. And even Aristotle, who you're quoting, thought that it didn't really work. Aristotle says actually nature doesn't make these clean divisions, even though he tries to advance the argument. So in a sense, there's quite a rich defense of slavery and quite a rich set of attacks on slavery all the way through. You know, there's not one single attack on slavery. It's attacked economically as maybe not being the right way to organize labor. It's attacked morally, it's attacked legally, it's attacked on religious grounds. And then after the Haitian Revolution, it's attacked on the grounds of safety. Maybe this is just a very dangerous institution to trying to contain within your borders.

Savannah Eccles Johnston: 

[00:21:09 - 00:22:58]

Right. So this is, I think, very useful for understanding the Declaration. Slavery, the most obvious infringement of the Declaration, of the philosophies expounded by the Declaration, is very controversial. It's not like 1860 comes around and suddenly we realize, oh, slavery is wrong. No, it's deeply controversial then. And the dominant opinion seems to be that it is morally wrong, though maybe cannot be disposed with yet, maybe through these kind of gradual methods. But let's go back to Montesquieu for just a second and maybe this can be the last person we speak about. So Montesquieu makes this argument that republicanism and slavery cannot coexist. And yet in the moment of 1776 and then again in 1787, you have Republican ideals existing alongside slavery. And they don't really come to a terribly violent head until 1861. Until you get to civil war, where that proposition is really tested. Can they exist side by side? And the answer is, well, no, as it turns out, bloodiest war in American history. They can't exist side by side. It's kind of this terrible tragedy that it was even attempted and that maybe there was an off ramp to it that wasn't taken. Before we started this podcast, you and I were chatting and you mentioned George Washington and you said that you believe George Washington may be one of the big deal slaveholders that you know of, who doesn't have any accusations against him of having fathered children with enslaved persons. And then, of course, there's John Adams, who's delightful in all the ways, unlikable person, great person in all the other aspects. Because you came here to speak about George Washington. This speaks to me yet another thing that I like about George Washington. Right. Yes. He owned people, but you mentioned he prided himself on at least thinking that slavery was distasteful and wrong.

Dr. Nicholas Cole:

[00:22:58 - 00:24:30]

He went quite a long way. I mean, he felt caught by the law. So it becomes quite difficult to emancipate slaves in Virginia. Slave owners write the laws after the revolution to even tighten that up and make it even harder to emancipate slaves. He doesn't properly own all of the slaves that he possesses. Many of them exist in his family because of his marriage, and he doesn't actually have the right to emancipate them. In his will, he emancipates those that he does have a right to emancipate. He writes in letters about not wanting to buy and sell people, although he does. I don't want to leave readers with the wrong impression. Washington does things as a slave owner that would find utterly abhorrent, and rightly so, including rotating slaves from his household when he's president and in a state that doesn't recognize slavery and has these very careful carve outs and he will rotate people back and forward so that he can have some of his slaves with him, that they can be there for a certain amount of time. But Washington is one of those figures really grappling with slavery. And you? Yes. I am not aware of accusations against him in the way there were, as a matter of course, insinuations at the time about many, many slave owners. And of course, Jefferson most of all. I'm never aware that even Washington's British detractors are not aware of them making that claim.

Savannah Eccles Johnston: 

[00:24:30 - 00:25:13]

Interesting. So two things I would take away from this. The first is maybe it's better to speak more about Washington and certainly Adams and less about Jefferson as kind of core founding fathers. Hopefully we're more Washingtonian and more like Adams, the American political project than Jefferson. But that's just my personal feelings on the matter. And the second is it's not cut and dry in 1776 when they're writing this declaration. It's very complicated. The arguments are in the water. No one is arguing at this point that slavery is a moral good. Really publicly arguing that slavery is a moral good. It is a moral evil. Are they going to end it yet? Know what will it look like in the future? They're not sure. They removed this passage for this or other reasons, and it stays with us.

Dr. Nicholas Cole:

[00:25:13 - 00:25:41]

And I think you mentioned those two moments, 1776 and 1787. Well, 1787 is easy. If anybody had tried to use the convention to settle the question of slavery, there would have been no union. That is absolutely clear. We could do a whole other podcast on the debates on slavery in the convention, and maybe we should. But it is absolutely clear that is not an issue that the convention is able to settle. And there would just be no union if anybody had tried.

Savannah Eccles Johnston: 

[00:25:41 -00:25:42]

Right.

Dr. Nicholas Cole:

[00:25:42 - 00:26:19]

And even if there had been a suspicion that the union might have been a vehicle for emancipation without the consent of, by that time, states that were becoming pretty committed to the idea of owning. So there would have been no union. 1776, it's a little bit harder to say. I think there is, as you know, a very delicate coalition in favor of independence. Had this issue been more to the fore, would that coalition have been harder to maintain? I have to think probably yes. But that's a much harder case to make.

Savannah Eccles Johnston: 

[00:26:19 - 00:26:32]

1776 is murky on the question of slavery, and this actually helps us understand the moment and the document and what it represents and what it led to understand that everything was kind of up in the air.

Dr. Nicholas Cole:

[00:26:32 - 00:26:33]

Absolutely.

Savannah Eccles Johnston: 

[00:26:33 - 00:26:34]

Thank you for joining us. We so appreciate you.

Dr. Nicholas Cole:

[00:26:34 - 00:26:36]:

Well, thank you so much for having me.

Outro 

[00:26:36 - 00:27:22]

The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self government that shapes every part of our civic life, from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought and Leadership Initiative.