Yesterday I wrote about Thomas Jefferson's refusal to execute the will of his friend Tadeusz Kosciuszko, and use his American estate for the purchase and subsequent liberation of his black slaves.

The story of Kosciuszko's will is considerably more complicated than is suggested by this story. It was actually something of a legal scandal. Kosciuszko's "American will" was a letter to Jefferson with instructions for what to do in the event that he died intestate. However, he subsequently drew up multiple wills in Europe, which led to litigation upon his death. The case was in court for decades, with the beneficiaries of one of Kosciuszko's European wills eventually being awarded the bulk of the estate. 

So Jefferson had good reason not to carry out Kosciuszko's instructions. Indeed, if I recall correctly he never actually had possession of the money at any point during the litigation.

Wiencek also excoriates Jefferson for his handling of Tadeusz Kosciusko's will. Kosciusko, the Polish patriot and supporter of the American Revolution, drafted a will in 1798 that included a bequest of funds to purchase and emancipate slaves, naming Jefferson as executor. According to Wiencek, the matter was crystal clear, as it must be if he wants to present yet another example of Jefferson's implacable evil: "Kosciusko had made him the executor of the will, so Jefferson had a legal duty, as well as a personal obligation to his deceased friend, to carry out the terms of the document." Jefferson "refused" to act. 

Jefferson's legal duties, however, were inextricably paired with potential liabilities of which Wiencek seems wholly unaware. Long story short: Kosciusko screwed up. After the 1798 will, Kosciusko wrote three more wills, the last one in 1817, the year he died. In the one written in 1816, he explicitly revoked all his previous wills and made bequests to other people in Europe. He made no mention of excepting the American will from this revocation, though a reference he made in a letter to Jefferson in 1817 indicates he thought his 1798 bequest still valid. Jefferson may have believed that too. 

But he also knew that whether Kosciusko's statement revived the bequest was a legal question that would have to be answered in court--a high court, no doubt, given the large sums of money involved. Upon learning what Kosciusko had done, and that there were competing wills, Jefferson, in his mid-70s, transferred his duties (and, this is important, his potential financial exposure) to a court that then appointed an administrator. 

As Jefferson knew, this was a litigation disaster waiting to happen. Indeed, the case became an American version of Bleak House's Jarndyce v. Jarndyce, dragging on from the 1820s to final resolution before the Supreme Court in 1852, which declared that the 1816 will had, in fact, revoked the 1798 bequest. Using money from the bequest to free slaves when others had potentially valid claims on the estate would have been extremely risky. If Jefferson had done that and it was later determined that the claimants had a right to the funds, he could be liable for repayment. Once he gave his powers over to the court, Jefferson's responsibilities--and the threat of financial entanglement to his already precarious financial position--were over.

Gordon-Reed the law professor had some fun with the tragic fate of Kosciuszko's will, and may have befuddled the jury with irrelevancies. Long story short: In his will Thaddeus Kosciuszko left Jefferson a very large sum of money to free his slaves ("I beg Mr. Jefferson," he wrote, to free his slaves and give them land); Jefferson declined to carry out the will. Gordon-Reed's position is that this was a non-issue because the will was fatally defective. 

But Jefferson's grandson didn't think so: Just months after Thomas Jefferson died in 1826, Jeff Randolph tried to revive the Kosciuszko bequest, "to save some of the Slaves left by Mr Jefferson, from a Sale by his creditors." Jeff Randolph was not deterred by any potential financial risks such as Gordon-Reed darkly evoked. Furthermore, Thomas Jefferson himself thought the will would stand. When Jeff Randolph made his enquiry about saving slaves in 1826, the will's administrator, Benjamin L. Lear, replied that "I had a conversation with Mr Jefferson on the subject at Monticello about three years ago, in wh: he approved very heartily the plan I then proposed to adopt"-- a plan to free slaves from elsewhere, not Monticello. Jefferson had no interest in releasing his extremely valuable slaves, but he believed the bequest was perfectly valid. 

Kosciuszko died on October 15, 1817. After several years of vacillation, Jefferson withdrew from his pact of honor with Kosciuszko by pleading in a Virginia court in Charlottesville that he could not serve as executor of his friend's estate and would not use the money to free his slaves. As William Lloyd Garrison would say many years later, "What an all-conquering influence must have attended his illustrious example," if he had taken the lead to abolish slavery. Merrill Peterson, for all his admiration for Jefferson, was anguished by this retreat: "The object of [Kosciuszko's] will was lost. Had Jefferson felt stronger about the object, he would have ventured the experiment, despite statutory obstacles and the shortness of years, for the experiment [of freeing his slaves] was one he often commended to others and, indeed, one he may have himself suggested to Kosciuszko." 

Why did Jefferson, while throwing himself energetically into the creation of the University of Virginia, plead that he was too old and tired to carry out Kosciuszko's will and betray the trust of his Polish compatriot? One of the key reasons was Jefferson's allegiance to the Old Dominion aristocracy and his devotion to sustaining the economic and cultural leverage of the white South in national politics. He also feared offending friends, especially slaveowners already shaken by the actions of others in Virginia who had released slaves from bondage. In a time when we are accustomed to seeing the current president reject scientific analysis on fearsome problems, stack regulatory commissions with those devoted to non-regulation, and stake out policy positions on the basis of insider friends and their deep-pocket interests, this earlier abandonment of an honor-bound pact with Kosciuszko has a peculiar odor.

On June 10, 1807, the elder Coles wrote to his son that he and Edward's brother Tucker were both ill and summoned Edward home to oversee the harvest of Enniscorthy's crops. Coles left Williamsburg without a degree on June 25. In the winter of 1808, John Coles II died, leaving Rockfish, a 782-acre plantation in what was then Albemarle County (later Nelson County), to Edward Coles. His father also willed him a dozen slaves. Coles prepared to receive his inheritance knowing he would free the enslaved men and women, but he did not tell his family lest they intervene and somehow prevent the transfer of property.

[I]n the mean time are you right in abandoning this property, and your country with it? I think not. My opinion has ever been that, until more can be done for them, we should endeavor, with those whom fortune has thrown on our hands, to feed and clothe them well, protect them from all ill usage, require such reasonable labor only as is performed voluntarily by freemen, & be led by no repugnancies to abdicate them, and our duties to them.