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THOMAS JEFFERSON, SLAVERY, AND SLAVES Aaron Schwabach* I. INTRODUCTION: THOMAS JEFFERSON, SLAVERY, AND SLAVES 2 II. JEFFERSON AND SLAVERY 3 A. Introduction 3 B. Thomas Jefferson as a Slave Owner 5 L Sally Hemings 6 2. Edward Coles 7 3. The Disintegration of Thomas Jefferson's Slave Community 8 C. The Law of Slavery in Jefferson's Time 9 1. Slavery in Virginia 10 2. Slavery in the Other Colonies, States, and Territories 14 3. Jefferson in France: The Revolution and the Declaration of the Rights of Man 17 D.Thomas Jefferson and the Institution of Slavery 18 1. Thomas Jefferson as an Opponent of Slavery 18 2. The Declaration of Independence 19 3. After the Revolution: Emancipation and Expatriation 21 4. Jefferson on the Subject of Race 21 E. Thomas Jefferson's Impact on the Law of Slavery 30 F. Conclusion 33 III. THOMAS JEFFERSON AS AN UNSUCCESSFUL ADVOCATE FOR FREEDOM IN HOWELL V. NETHERLAND 34 A. Introduction 34 B. The Participants 34 1. Howell 34 2. Jefferson 35 3. Wythe 36 * Professor of Law, Thomas Jefferson School of Law. JD, University of California at Berkeley, Boalt Hall School of Law. The author would like to thank the faculty, staff and students of Thomas Jefferson School of Law for their interest in this project. 1
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THOMAS JEFFERSON LAW REVIEW [Vol. 33:1 C. The Law 37 1. The Statutes 37 2. Jefferson's Arguments 39 D. Conclusion 41 IV. THOMAS JEFFERSON & SALLY HEMINGS42 A. Sally Hemings 43 B. The DNA Testing 45 C. The Official Story (Prior to November 1998)47 1. The "Character" Argument 49 2. Jefferson and Hemings in Fiction 51 D. Reassessing Jefferson 52 E. The Public Reaction 54 F. Other Slave Owner/Slave Relationships 58 G. Conclusion: What Does the Truth About Jefferson & Hemings Mean to Us? 59 I INTRODUCTION: THOMAS JEFFERSON, SLAVERY, AND SLAVES A decade and a half ago, what was then the San Diego campus of Western State University declared its independence from the parent school and received accreditation from the American Bar Association (ABA) as a new law school, under the name Thomas Jefferson School of Law. Not surprisingly, questions soon arose among the students, staff, and faculty about the appropriateness of the name. Its merits are easy to spot: What one person, after all, has had a greater impact on the shaping of the American legal system than Thomas Jefferson?' But Jefferson was a controversial and divisive figure during his own lifetime, and has not grown less so with time. Not everyone was happy with the name; Paul Finkelman, an expert on questions of law, race, and American history, and also on Thomas Jefferson,^ visited the school and gave a talk with the title "Why Would Anyone Name a Law School after Thomas Jefferson?" Arguments may and do rage about Jefferson's religious faith or lack thereof, and on his views on federalism and states' rights or on the balance between government and individual liberty. Yet nothing about Jefferson elicits as immediate and emotional a response as his peculiarly 1. You in the back with your hand up, whispering "John Marshall!" You can sit back down and put your hand down now.
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