Some Clarification on Thomas Jefferson

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.

A commenter pointed out that my post renders this incident with a kind of simplicity that evades the actual reality:

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.
First of all, I plead guilty to simplifying, and my apologies to everyone for that. The story is more complicated than a racist, malicious Jefferson simply refusing the last request of a friend.

This particular point has been a part of the ongoing dispute between the historians Annette Gordon-Reed and Henry Wiencek. Here is Gordon-Reed's chronology of events and subsequent defense of Jefferson:

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. 
I should also add that Wiencek is not alone in his criticism of Jefferson. Historians Gary B. Nash and Graham Russell Gao Hodges (whom the quote below comes from), along with Jefferson historian Merrill Peterson, have criticized Jefferson in the same vein:

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.
Annette Gordon-Reed's defense implicitly assumes that Jefferson bears no moral culpability, that Kosciuzko is ultimately (and seemingly totally) at fault. Writing three different wills -- the last of which revokes all previous wills -- strikes me as fairly strong evidence in favor of such an opinion, if we are talking about your garden variety slave-owner, circa 1817. But Jefferson was not and is not your garden variety slave-owner.

It was Jefferson who claimed that "the whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other."

It was Jefferson who asked, "[C]an 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?"

It was Jefferson who asserted that slavery is plague upon the slaveholder: "With the morals of the people, their industry also is destroyed. For in a warm climate, no man will labour for himself who can make another labour for him."

It was Jefferson who, taking it all, in saw the cataclysmic coming of slavery's end -- "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!"

When that revolution came, some 700,000 Americans were killed. Faced with the chance to put down his name among those who sought to forestall what Jefferson himself believed to be divine wrath, Jefferson declined.

One need not judge Jefferson by today's morality. Judge him by his own. If this is too much, judge him by those who were inspired by his words. Jefferson was not the only figure who faced legal hurdles in his effort to pursue emancipation. Edward Coles was so determined to liberate his family's property that when he inherited his father's plantation he concealed his intent from his family members, lest they contest the will:

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.
When Coles informed Jefferson of his plan, he did not simply wish Coles well, instead he urged Coles to continue holding slaves:

[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. 
Taking all of this in context, I don't think it's sufficient to, on the one hand, laud Jefferson as the great father of our country (which he is), and then render him blameless in his behavior of Kosciuzko. It's a strange standard that would have Jefferson as the best of his generation, and yet have us judge him against the worst.

It is certainly true that Jefferson had good reason to not enter the fight. So did Edward Coles. So did Robert Carter III. Cowardice often enjoys good reason. Courage enjoys higher reason.