Front Page Titles (by Subject) 1770 - TO JOHN PAGE - The Works, vol. 1 (Autobiography, Anas, 1760-1770)
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1770 - TO JOHN PAGE - Thomas Jefferson, The Works, vol. 1 (Autobiography, Anas, 1760-1770) 
The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 1.
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TO JOHN PAGE
Charlottesville, Feb. 21, 1770.
—I am to acquaint Mrs. Page of the loss of my favorite pullet; the consequence of which will readily occur to her. I promised also to give her some Virginia silk which I had expected, and I begin to wish my expectation may not prove vain. I fear she will think me but an ungainly acquaintance. My late loss may perhaps have reached you by this time; I mean the loss of my mother’s house by fire, and in it of every paper I had in the world, and almost every book. On a reasonable estimate I calculate the cost of the books burned to have been £200 sterling. Would to God it had been the money, then had it never cost me a sigh! To make the loss more sensible, it fell principally on my books of Common Law, of which I have but one left, at that time lent out. Of papers too of every kind I am utterly destitute. All of these, whether public or private, of business or of amusement, have perished in the flames. I had made some progress in preparing for the succeeding General Court; and having, as was my custom, thrown my thoughts into the form of notes, I troubled my head no more with them. These are gone, and like the baseless fabric of a vision, leave not a trace behind. The records also, and other papers which furnished me with states of the several cases, having shared the same fate, I have no foundation whereon to set out anew. I have in vain attempted to recollect some of them; the defect sometimes of one, sometimes of more circumstances, rendering them so imperfect that I can make nothing of them. What am I to do then in April? The resolution which the Court has declared of admitting no continuances of causes seemed to be unalterable; yet it might surely be urged, that my case is too singular to admit of their being often troubled with the like excuse. Should it be asked, what are the misfortunes of an individual to a Court? The answer of a Court, as well as of an individual, if left to me, should be in the words of Terence, “homo sum; humani nil a me alienum uto”—but a truce with this disagreeable subject.
Am I never more to have a letter from you? Why the devil don’t you write? But I suppose you are always in the moon, or some of the planetary regions. I mean you are there in idea; and, unless you mend, you shall have my consent to be there de facto; at least during the vacations of the Court and Assembly. If your spirit is too elevated to advert to sublunary subjects, depute my friend Mrs. Page to support your correspondences. Methinks I should, with wonderful pleasure, open and peruse a letter written by so fair, and (what is better) so friendly hands. If thinking much of you would entitle me to the civility of a letter, I assure you I merit a very long one. If this conflagration, by which I am burned out of a home, had come before I had advanced so far in preparing another, I do not know but I might have cherished some treasonable thoughts of leaving these my native hills; indeed I should be much happier were I nearer to Rosewell and Severn hills—however, the Gods, I fancy, were apprehensive that if we were placed together, we should pull down the moon, or play some such devilish prank with their works. I reflect often with pleasure on the philosophical evenings I passed at Rosewell in my last visits there. I was always fond of philosophy, even in its drier forms; but from a ruby lip, it comes with charms irresistible. Such a feast of sentiment must exhilarate and lengthen life, at least as much as the feast of the sensualist shortens it—in a word, I prize it so highly, that, if you will at any time collect the same Belle Assemblée, on giving me three days previous notice, I shall certainly repair to my place as a member of it. Should it not happen before I come down, I will carry Sally Nicholas in the green chair to Newquarter, where your periagua (how the — should I spell that word?) will meet us, automaton-like, of its own accord. You know I had a wagon which moved itself—cannot we construct a boat then which shall row itself? Amicus noster Fons,1quo modo agit, et quid agit? You may be all dead for anything we can tell here. I expect he will follow the good old rule of driving one passion out by letting another in. Clavum clavo pangere was your advice to me on a similar occasion. I hope you will watch his immersion as narrowly as if he were one of Jupiter’s satellites; and give me immediate notice, that I may prepare a dish of advice. I do not mean, Madam, to advise him against it. On the contrary, I am become an advocate for the passion; for I too am cœlo tactus, Currus1bene se habet. He speaks thinks, and dreams of nothing but his young son. This friend of ours, Page, in a very small house, with a table, half a dozen chairs, and one or two servants, is the happiest man in the universe. Every incident in life he so takes as to render it a source of pleasure. With as much benevolence as the heart of man will hold, but with an utter neglect of the costly apparatus of life, he exhibits to the world a new phenomenon in philosophy—the Samian sage in the tub of the cynic. Name me sometimes homunculo tuo, not forgetting little dic mendacium. I am determined not to enter on the next page, lest I should extend this nonsense to the bottom of that also. A dieu je vous commis, not doubting his care of you both.
ARGUMENT IN THE CASE OF HOWELL VS. NETHERLAND2
On behalf of the plaintiff it was insisted, 1st, that if he could be detained in servitude by his firstmaster, he could not be aliened. But 2nd. that he could not be detained in servitude.
1. It was observed that the purpose of the act was to punish and deter women from that confusion of species, which the legislature seems to have considered as an evil, and not to oppress their innocent offspring. That accordingly it had made cautious provision for the welfare of the child, by leaving it to the discretion of the church wardens to choose out a proper master; and by directing, that that master should provide for it sufficient food, clothing, and lodging, and should not give immoderate correction. For these purposes the master enters into covenants with the church wardens; and to admit he had a power after this to sell his ward, would be to admit him a power of discharging himself of his covenants. Nor is this objection answered by saying that the covenants of the first master are transferred to the alienee, because he may be insolvent of the damages which should be recovered against him, and indeed they might be of such a nature as could not be atoned for, either to the servant or to society; such, for instance, would be a corruption of morals either by the wicked precept or example of the master, or of his family. The truth is, the master is bound to the servant for food, raiment, and protection and is not at liberty, by aliening his charge, to put it out of his own power to afford them when wanting. The servant may as well set up a right of withdrawing from his master those personal services which he, in return, is bound to yield him. Again, the same trust which is created by express compact in favor of the first mulatto, is extended by the law to her issue. The legislature confiding that the choice of a master for the first mulatto, by the church wardens, would be prudent, vest the issue in him also without further act to be done; and the master, at the time he takes the mother, knowing that her issue also is to be under her servitude on the same conditions, does by accepting her, tacitly undertake to comply with those conditions raised by the law in their favor. These servants bear greater resemblance to apprentices than to slaves. Thus, on the death of the first master, they go to his executor as an apprentice would, and not to his heir as a slave. The master is chosen, in both cases, from an opinion of his peculiar propriety for that charge, and the performances of his duty in both cases is secured by mutual covenants. Now it is well known that an apprentice can not be aliened; and that, not from any particular provision of the legislature, but from the general nature of the connection and engagements between them: there being, as was before observed, a trust reposed in the diligence and discretion of the master; and a trust by our law cannot be assigned. It adheres to the person as closely as does his integrity, and he can no more transfer the one than the other to a purchaser. But,
2nd. It was insisted, that the plaintiff, being a mulatto of the third generation, would not be detained in servitude under any law whatever: the grand position now to be proved being that one law had reduced to servitude the first mulatto only, the immediate offspring of a white woman by a negro or mulatto man; that a second law had extended it to the “children” of that mulatto; but that no law had yet extended it to her grandchildren, or other issue more remote than this. To prove this, a general statement of these laws was premised. Act of 1705, c. 49 s. 18. “If any woman servant shall have a bastard child, by a negro or mulatto, or if a free Christian white woman shall have such bastard child by a negro or mulatto; in both the said cases the churchwardens shall bind the said child to be a servant until it shall be of thirty one years of age.” In other parts of the act, it is declared who shall be slaves, and what a manumission of them; from sect. 34 to 39. are regulations solely relative to slaves, among which is sect. 36. “Baptism of slaves doth not exempt them from bondage; and all children shall be bond or free according to the condition of their mothers and the particular directions of this act.”
Act. 1723. c. 4. s. 22. “Where any female mulatto or Indian, by law obliged to serve till the age of thirty or thirty one years shall, during the time of her servitude, have any child born of her body, every such child shall serve the master or mistress of such mulatto or Indian, until it shall attain the same age, the mother of such child was obliged, by law, to serve unto.”
In 1748, the Assembly revising and digesting the whole body of our acts of Assembly, in act 14. s. 4. incorporate the clauses before cited, without any addition or alteration. And in 1753, c. 2. s. 4. 13, the law of 1748, is re-enacted with some new matter which does not effect the present question.
Now it is plain the plaintiff does not come within the description of the act of 1705, s. 18; that only reducing to servitude “the child of a white woman by a negro or mulatto man.” This was the predicament of the plaintiff’s grandmother. I suppose it will not be pretended that the mother being a servant, the child would be a servant also under the law of nature, without any particular provision in the act. Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance. The reducing the mother to servitude was a violation of the law of nature: surely then the same law cannot prescribe a continuance of the violation to her issue, and that too without end, for if it extends to any, it must to every degree of descendants. Puff. b. 6. c. 3. s. 4. 9. supports this doctrine. For having proved that servitude to be rightful, must be founded on either compact, or capture in war, he proceeds to shew that the children of the latter only follow the condition of the mother: for which he gives this reason, that the person and labor of the mother in a condition of perfect slavery, (as he supposes to be that of the captive in war) being the property of the master, it is impossible she should maintain it but with her master’s goods; by which he supposes a debt contracted from the infant to the master. But he says in cases of servitude founded on contract, “The food of the future issue is contained or implied in their own maintenance, which their master owes them as a just debt; and consequently their children are not involved in a necessity of slavery.” This is the nature of the servitude introduced by the act of 1705, the master deriving his title to the service of the mother, entirely from the contract entered into with the churchwardens. That the bondage of the mother does not under the law of nature, infer that of her issue, as included in her, is further obvious from this consideration, that by the same reason, the bondage of the father would infer that of his issue; for he may with equal, and some anatomists say with greater reason, be said to include all his posterity. But this very law admits there is no such descent of condition from father to child, when it imposes servitude on the child of a slave, which would have been unnecessary, if the condition had descended of course. Again, if it be a law of nature that the child shall follow the condition of the parent, it would introduce a very perplexing dilemma; as where the one parent is free and the other a slave. Here the child is to be a slave says this this law by inheritance of the father’s bondage: but it is also to be free, says the same law by inheritance of its mother’s freedom. This contradiction proves it to be no law of nature.
But the 36th section of the act will perhaps be cited as the entailing condition of the mother on the child, where it says, that “children shall be bond or free according to the condition of the mother, and the particular direction of this act.” Now that the word “bond” in this clause relates to “slaves” only, I am justified in asserting, not only from common parlance but also from its sense in other parts of this very act. And that on the other hand it considers those who were to be free after a temporary servitude, as described under the word “free.” In this very section, 36, it says, “baptism of slaves does not exempt them from bondage.” Here then in the very sentence now under consideration, the word bondage is used to express perpetual slavery; and we cannot conceive they meant to use it in two different senses in the same sentence. So in clause nineteen of the same act, it says, “to prevent that abominable mixture of white men or women with negroes or mulattoes, whatever white man or woman being free, shall intermarry with a negro or mulatto, &c. shall be committed to prison, &c.” Now unless the act means to include white servants and apprentices under the denomination of “freemen,” then a white servant or apprentice may intermarry with a negro or mulatto. But this is making the act miss of its purpose, which was “to prevent the abominable mixture of white men or women with negroes or mulattoes.” But to put it out of dispute, the next clause (twenty) says that “if any minister shall, notwithstanding, presume to marry a white man or woman with a negro or mulatto,” he shall incur such a penalty. Here then the prohibition is extended to whites in general, without saying “free whites” as the former clause did. But these two clauses are plainly co-extensive; and consequently the word “free” in the nineteenth, was intended to include the temporary white servants taken in by the twentieth clause, under the general appellation of “white men or women.” So that this act where it speaks of bondmen, means those who are “perpetual slaves,” and where of “freemen,” those who are to be free after a temporary servitude, as well as those who are so now. Indeed to suppose, where the act says, “the children of a bondwoman shall be bond,” that it means “the children of a temporary servant shall be temporary servants,” would infer too much: for it would make temporary servants of the children of white servant women, or of white apprentice women, which yet was never pretended. The conclusion I draw from this, is, that since the temporary service of a white woman does not take from her the appellation of a freewoman, in the sense of this act, and her children under this very clause are free, as being the children of a free woman, neither does the temporary servitude of a mulatto exclude her from the same appellation, and her children also shall be free under this clause, as the children of a free woman. So that the meaning of this clause is, that children shall be slaves, where slavery was the condition of the mother; and free, where freedom either immediate or remote, was her condition: excepting only the instance of the mulatto bastard, which this act makes a servant, though the mother was free. This is the case alluded to by the last words of the clause, “according to the particular direction of this act.” Because in this case, the act had made a temporary servant of the child, though the mother was not so.
Then comes the act of 1723, directing that where any female mulatto or Indian, by law obliged to serve till thirty or thirty one, shall have a child during her servitude, such child shall serve the same master to the same age. This act does itself prove that the child was not obliged to serve under the former law of 1705, which had imposed servitude on the mother; and consequently that the clause “children shall be bond or free, according to the condition of the mother,” affected the children of slaves only. For wherefore else was this law made? If the children of a mulatto held in temporary servitude were to follow the condition of the mother, and be temporary servants under the law of 1705, that of 1723 was wholly unnecessary. But on the contrary, when we find an Assembly within eighteen years after the law of 1705, had been passed, the one half or whom would probably be the same members who had passed that law, when we see these people I say, enacting expressly that the children should be temporary servants, it is a strong proof the makers of the first law had not intended they should be so. Expositio contemporanea est optima, is a maxim in our law, because such exposition is supposed to be taken from the makers of the law themselves, who best knew their own intention; and it is doubly conclusive, where the makers themselves pass a new act to testify their intention. So that I hold it certain, the act of 1705, did not extend to the children of the first mulatto, or that of 1723, would not have been made.
That the act of 1723, did not extend to the plaintiff, is apparent from its words. “Where any female mulatto by law obliged to serve till thirty one (that is, the plaintiff’s grandmother) shall during the time of her servitude, have a child born of her body (that is, the plaintiff’s mother) such a child shall serve till thirty one.” This act describes the plaintiff’s mother then as the subject on which to operate. The common sense of mankind would surely spare me the trouble of proving the word “child” does not include the grandchild, great-grandchild, great-great-grandchild, &c. in infinitum. Or if that would not, the act itself precludes me, by declaring it meant only a “child born of her body.” So that as the law of 1705, has made a servant of the first mulatto, that of 1723, extends it to her children.
The act of 1748, is the next in course. At this time all our acts were revised and digested, and sent in one volume to receive his Majesty’s approbation. These two laws being found to be on the same subject, were then incorporated without any alteration. This however, could not affect their meaning, which is still to be sought after by considering the component acts in their separate state. At any rate it cannot affect the condition of the plaintiff, who was born in 1742, which was six years before it was made. The same may be said of the law of 1753, which is copied from 1748, with only the addition of some new matter, foreign to the present question. So that on the laws of 1705, and 1723, alone, it is to be determined; with respect to which I have endeavored to shew;
That the first of them subjected to servitude, the first mulatto only.
That this did not, under the law of nature, affect the liberty of the children.
Because, under that law we are all born free.
Because, the servitude of the mother was founded on compact, which implies maintenance of her children, so as to have them under no obligation to the master.
And because, this descent of condition from parent to child, would introduce a contradiction where the one parent is free, and the other in servitude.
That as little are they affected by the words of the act, “children shall be bond or free, according to the condition of the mother.”
Because that act uses the word “bond,” so as to shew it means thereby those only who are perpetual slaves, and by the word “free” those who are entitled to freedom in præsenti or in futuro; and consequently calling the mother “free,” says her children shall be “free.”
Because it would make servants of the children of white servants or apprentices, which nobody will say is right.
And because the passing the act of 1723, to subject the child to servitude, shews it was not subject to that state under the old law.
And lastly, that the act of 1723, affects only “children of such mulattoes,” as when that law was made were obliged to serve till thirty-one; which takes in the plaintiff’s mother who was of the second generation, but does not extend to himself who is of the third.
So that the position at first laid down is now proven, that the act of 1705, makes servants of the first mulatto, that of 1723, extends it to her children, but that it remains for some future legislature, if any shall be found wicked enough, to extend it to the grandchildren and other issue more remote, to the “nati natorum et qui nascentur ab illis.”
TO THOMAS ADAMS,1 MERCHANT
Charlottesville, July 11: 1770.
—I take the liberty of interceding for your friendly aid to mr James Ogilvie, a gentleman of my acquaintance now in London. Purposing last fall to go to Britain for orders he made the usual application to the commissary for his recommendatory letter to the bishop. This man, partly from an evil disposition to defeat the wishes of some gentlemen, no favorites of his, who bore a warm friendship to mr. Ogilvie, and partly from that elation of mind which usually attends preferment without merit and which has no other object in view but to hang out to the world it’s own importance, peremptorily refused his recommendation. The cause of refusal which he assigned unfortunately gave the lie to his own conduct of a few weeks before. He thought Ogilvie not qualified for the sacred function because he did not possess a critical knowledge of the Greek; tho’ but a very few weeks before he had thought his sadler properly qualified who was not only a stranger to the characters, but perhaps even to the present existence of that language. He did however condescend to promise Ogilvie that he would not oppose his ordination with the bishop; a promise which seems to have been made with no other than the wanton purpose of sporting with truth: for tho’ Ogilvie sailed within a few days after receiving this promise the commissary’s letter found means to be before him, and to lodge with the bishop a caveat against his ordination. Here then the matter rests, till his friends can take proper measures for counteracting the designs of this worthy representative of episcopal faith; and as he is obliged to remain in London in the meantime and probably went unprovided for so long a stay, I would ask the favor of you, and I shall deem it a very great one, to procure him credit with your mercantile friends in London for any monies of which he may be in need, for the repaiment of which I enter myself security. I do not know that I can profer you any reward for this favor, other than the sublime pleasure of relieving distressed merit, a pleasure which can be properly felt by the virtuous alone. I would hope at the same time that the receipt of interest might prevent any pecuniary injury from such advancements. Should you find it convenient to lend such assistance you will be pleased to give mr. Ogilvie notice of it by a letter directed to him at mrs Ballard’s Hungerford street in the Strand. I would also beg in that case that you would embrace the first opportunity of doing it, as we are totally in the dark what may be the necessaries of his situation. You will be pleased to excuse the freedom and perhaps impropriety of this application. My feelings are warm in the cause of this gentleman, and having no connections or correspondence on that side of the water I apply to the single friendship from which I could hope effectual aid to any person there in whose welfare I am interested. Nevertheless if this aid should be attended with inconvenience I expect and insist that you shall decline it with the same freedom with which I ask it. And be assured that I am with much sincerity your friend & humble servt.
TO PEYTON RANDOLPH
Albemarle, July 23, 1770.
—I am to beg the favor of your friendly interposition in the following case, which I hope you will think sufficient to excuse the freedom of the application. Some time last fall mr Jas Ogilvie purposing to go for orders made the usual application to the commissary for his recommendatory letter to the bishop. The commissary finding him somewhat deficient in his Greek expressed some doubts whether he could recommend him. Ogilvie to remove them did without thought to be sure make use of a very unfortunate argument, mentioning to the commissary the case of Stevenson who without understanding a word of Greek had been lately recommended. The commissary took flame at the hint and peremptorily refused his recommendation. In several subsequent visits Ogilvie attempted to soften him and did at length prevail so far as to obtain a promise that he would not oppose his ordination with the bishop. With this assurance, and with an actual nomination to a parish in his pocket he took his departure. But whether the commissary’s frame is such as that he does not feel the obligations of an engagement or whether he really thought he had done wrong in entering it I cannot say, but before Ogilvie reached London he had lodged a letter with the bishop in which were these words “mr Ogilvie applied to me last spring for a recommendation to your Lordships for holy orders. For reasons which then existed I refused him. He has now applied to me a second time, as these reasons are not removed I have denied him again but he goes home in opposition.” Nothing could have been more artfully contrived [?] to do him a prejudice. The bishop observed to Colo Mercer, who had espoused Ogilvie’s interest with some warmth that had mr Horrocks mentioned his objections, it would have left him to judge whether they were such as he might have overlooked; but that a charge so general laid his whole character open to censure in such a manner as to put it out of his power to vindicate it. This young gentleman seems to have been guided thro’ life by the hand of misfortune itself. Some hard fatality which presides over all his measures has rendered abortive every scheme which either his prudence or the anxiety of his friends have ever proposed for his advancement. His present undertaking was peculiarly unfortunate. Before he went to London he paid a visit to his father a presbyterian minister in Aberdeen, who received him with all the joy with which an absence of many years could inspire a parent. Yet, so wonderful is the dominion of bigotry over her votaries that on the first information of his purpose to receive episcopal ordination he shut him from his doors and abjured every parental duty. Thus rejected by that hand from which he had expected some assistance necessary even for the short residence on that side of the water which he had then in contemplation he hastened to London, and there received the last stroke which fortune had in reserve for him. The distresses of his situation operating on a mind uncommonly sensible to the pains as well as to the pleasures of life may be conceived even by those to whom fortune has been kinder. There he still remains then, and there he must remain (for it is his last stake) till the commissary can be prevailed on either to withdraw his opposition or to explain the grounds of it, or till we can take such other measures as may counteract it’s malignity. The former is the easier and shorter relief to Ogilvie’s distress and it is not impossible but that the commissary may by this time be disposed to assist him. For this purpose I have ventured to ask your interposition with him on behalf of this gentleman in whose cause I have warm feelings. This liberty I have taken with you not on any assumed rights of friendship or acquaintance, but merely on the principles of common humanity to which his situation seems to recommend him, and on the hope that you will think with the good man in the play “homo sum: humani nil a me alienum puto.” I have no interest at our episcopal palace, and indeed any application if known to come from me would rather be of disservice. I flatter myself your interposition there would have certain effect, and assure you it would lay me under lasting obligations. I suppose the most certain assistance would be a letter from the commissary to the bishop. But one thing I must conjure you to do, to see the letter yourself, that you may judge whether it be really friendly or not. I confess to you, mr speaker, that I put not the least confidence in the most solemn promises of this reverend gentleman. And unless yourself can be assured of the security of his endeavors I had rather proceed at once in such measures as may answer our purpose tho’ “in opposition.” After your application I have one further favor to ask of you, that if it is unsuccessful you will give me notice by a line lodged in the post office, if successful (as I doubt not but it will be) you would be so kind as to inclose his letter under cover to Ogilvie, and direct to him at mrs Ballard’s Hungerford street in the Strand London; as this would be a more speedy communication of relief to him than sendg the letter via Albemarle. I have no proffers to make you in return for all this trouble; fortune seems to have reserved your obligations for herself. You have nothing to ask, I nothing to give. I can only assure you then that I sincerely rejoice in the independence of your situation; I mean an independence on all but your own merit, than which I am sure you cannot have a more permanent dependence. I am Sir with much truth your very humble servt.
end of volume i.
[1 ]Probably Mr. William Fontaine, of Hanover County.
[1 ]By this term, he no doubt designated Mr. Dabney Carr, his brother-in-law.
[2 ]This, and Jefferson’s argument in the case of Godwin et al. vs. Lunan, printed herein under Oct., 1771, are the only legal arguments of his, while still a practising lawyer, that are extant, if we except a paper among the Jefferson manuscripts in the Department of State, being an “opinion” endorsed “On the Power of the General Court to established Fees.—E. Pendleton and T. Jefferson, May 4, 1774.” This latter is entirely in the handwriting of Pendleton, leaving it a matter of uncertainty what part was supplied by Jefferson. The two former owe their preservation to their incorporation in a collection of law reports which was prepared for publication by Jefferson some time before his death, and published in 1829 under the title of Reports of Cases Determined in the General Court of Virginia from 1730 to 1740, and from 1768 to 1772. Therein he says of this case:
[1 ]This and the following letter are from copies kindly furnished by Miss Sarah N. Randolph.