St. George Tucker and the legacy of slavery.

• Author: Curtis, Michael Kent
• Position: The Legacy of St. George Tucker

INTRODUCTION I. ST. GEORGE TUCKER ON SLAVERY A. Tucker's Condemnation of Slavery B. Tucker's Plan to Rid Virginia of Slavery II. TUCKER ON FREE SPEECH ON ALL PUBLIC MEASURES III. TUCKER ON PROTECTING WEALTH: AN ECONOMIC CONSERVATISM IN TENSION WITH DEMOCRACY A. Slavery, Race, and Democracy: One White Man, One Vote? B. Tucker on Entail and Primogenture IV. TUCKER ON PUBLIC EDUCATION V. DEVELOPMENTS AFTER TUCKER'S DEATH A. The Virginia Constitutional Convention of 1829 B. Extra Political Power for Slaveholders Helped Defeat a Plan to End Slavery in Virginia C. Later Incarnations of Ideas Raised by Tucker 1. Slavery and the Suppression of Antislavery Speech 2. The Black Codes 3. States' Rights, Slavery, and the Rights of Blacks VI. EVALUATION A. Tucker on Slavery B. Tucker on Free Speech C. Wealth and Democracy D. Public Education CONCLUSION INTRODUCTION

St. George Tucker (1752-1827) was a distinguished law professor, legal scholar, and judge. He was also an unsuccessful social reformer: a critic of slavery who sought to make emancipation acceptable to slaveholding Virginia. As a legal scholar, Tucker published an edition of William Blackstone's Commentaries that revised the Commentaries for use by Americans. (1) Compared to Blackstone, Tucker embraced a more functional and protective view of freedom of speech and press, one better designed for a government where "the people" are the ultimate authority. (2) Tucker also supported strong protections for religious liberty. While Tucker's writing embraced popular sovereignty and democracy, he opposed broader suffrage, opposed one (white) person-one vote, and argued for apportionment schemes that would protect wealth in land and slaves from a broader democracy.

Tucker supported the existing Virginia legislative apportionment plan, one that heavily favored slaveholding areas. In addition, he proposed a plan to model representation in Virginia on "federal numbers," counting slaves as three-fifths of a person. (3) These schemes were designed to protect concentrated wealth; they all gave extra political power to slaveholders. (4) Still, to some extent, Tucker also favored legal devices designed to protect democracy from an aristocracy of certain kinds of wealth. (5)

Tucker's concern for the protection of concentrated wealth from democracy was in serious tension with a more democratic vision that was beginning to emerge in the nation. In 1830 and 1831, the pro-slavery apportionment of the Virginia legislature helped defeat a resolution aimed at ending slavery in Virginia. (6) Tucker favored state-supported education, but the type of representative government Tucker favored may have helped to blight plans for public education. (7) Protecting the wealthy from taxes seems to have been a factor in antebellum Virginia's refusal to establish a statewide system of public education. (8)

Tucker wrote that slavery was inconsistent with democracy, but he did not elaborate on the insight. (9) After Tucker's death, the inconsistency became particularly stark. From one perspective, the tension in Tucker's thought between democracy and the protection of concentrated wealth in land and slaves is a problem from the bygone age of slavery. Similarly, his struggle with race and slavery may seem equally remote. From another perspective, the tension in Tucker's thought is simply a special case of an ongoing dilemma for American democracy, involving tensions between wealth, political equality, race, and egalitarian ideals.

Parts II-IV of this Article will examine St. George Tucker's views on slavery, free speech, wealth, democracy, and education. Part V will examine later developments in Virginia on these issues before the Civil War and will look at the later nineteenth-century career of ideas raised in Tucker's work. These ideas include free speech, states' rights, and the status to be accorded to free blacks. Finally, Part VI will evaluate the ambiguous legacy of St. George Tucker.

1. ST. GEORGE TUCKER ON SLAVERY

   1. Tucker's Condemnation of Slavery

      St. George Tucker opened his 1796 Dissertation on Slavery with an unequivocal condemnation of the institution:

       Whilst America hath been the land of promise to Europeans ..., it hath been the vale of death to millions of the wretched sons of Africa.... Whilst we were offering up vows at the shrine of Liberty ... we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions of which we complained. Such are the inconsistencies of human nature ...; such that partial system of morality which confines rights and injuries to particular complexions; such the effect of that self-love which justifies, ... not according to principle, but to the agent. (10) 

      Tucker referred to the slaves that American revolutionaries had failed to free as "our brethren whom we held in bondage." (11)

      In Tucker's view, invocations of liberty and equality by supporters of the American Revolution were relevant to the morality of slavery. (12) In contrast, in the 1857 Dred Scott decision, Chief Justice Taney insisted that the framers of the Declaration of Independence did not intend to include even free black descendants of slaves. (13) Taney insisted that free blacks were not included among "all men," who the Declaration announced were "created equal" and "endowed by their Creator with certain unalienable rights." (14)

      Tucker took a different view of the moral implications of revolutionary maxims of equality. He said that slavery defied the solemn and sacred truth that Virginians had made "the foundation of their government": that "'all men are by nature equally free and independent'" (15) and "have certain rights of which they cannot deprive or divest their posterity," including "the enjoyment of life and liberty, with the means of acquiring and possessing property." (16) Nor, as Tucker saw it, were the strong and clever entitled to enslave those with lesser gifts. Men were entitled to equal privileges in spite of the "bare unkindness of nature or of fortune." (17)

      According to Tucker, slavery could not be reconciled with American declarations of fundamental rights without degrading slaves below the rank of human beings. (18) Though the "policy of [the Virginia] legislature, as well as the practice of slave-holders," seemed to do just that, Tucker insisted that it was "time we should admit the evidence of moral truth, and learn to regard them as our fellow men." (19) He attributed the coexistence of slavery with Virginia's Declaration of Rights to the "weakness and inconsistency of human nature." (20)

      Tucker's Dissertation on Slavery contains his "melancholy review" of Virginia laws that deprived slaves "not only of the right of property, and the right of personal liberty, but even the right of personal security." (21) Tucker wrote:

       From this view of our jurisprudence respecting slaves, we are unavoidably led to remark, how frequently the laws of nature have been set aside in favour of institutions, the pure result of prejudice, usurpation, and tyranny. We have found actions, innocent or indifferent, punishable with a rigour scarcely due to any, but the most atrocious offenses against civil society; justice distributed by an unequal measure to the master and the slave; and even the hand of mercy arrested.... (22) 

      These horrors, Tucker believed, came not from the bloody temper of Virginians but "from those political considerations indispensably necessary, where slavery prevails to any great extent." (23) To Tucker, these facts showed the need to abolish slavery.

      In 1829, in State v. Mann, Justice Thomas Ruffin of the North Carolina Supreme Court also said slavery required harsh powers for masters. (24) Ruffin held that a man who had leased a slave was not guilty of any crime when the man shot the slave because the slave had run away from him while he was "chastis[ing]" her. (25) Ruffin reasoned that the law must turn a blind eye to acts of cruelty and barbarity aimed at slaves by their masters. (26) He held that "[t]he slave, to remain a slave, must be made sensible that there is no appeal from his master." (27)

      Ironically, American revolutionaries, many of whom were slaveholders, saw England as threatening them with slavery. Tucker's analysis of three types of slavery explains why. First, according to Tucker, a nation "deprived of the right of being governed by its own laws ... may be considered as in a state of political slavery." (28)

      Second, Tucker described a state of "civil slavery" that exists whenever natural liberty is "further restrained than is necessary and expedient for the general advantage." (29) He said that civil slavery also exists whenever an inequality of rights or privileges exists between the subjects or citizens of the same state, except such as necessarily results from the exercise of a political office. (30) Tucker continued, "the pre-eminence of one class of men must be founded and erected upon the depression of another; and the measure of exaltation in the former, is that of the slavery of the latter." (31)

      Tucker said that this species of slavery existed in every government in Europe before the French Revolution, in the American colonies before independence, and

       notwithstanding the maxims of equality which have been adopted in their several constitutions, it exists in most, if not all, of them, at this day, in the persons of our free Negroes and mulattoes; whose civil incapacities are almost as numerous as the civil rights of our free citizens. (32) 

      Tucker then enumerated examples of this second species of slavery imposed on free blacks, including denial of suffrage and political office, facing whippings for resistance to a white person, denial of the right to testify in any prosecution or civil action where a white man was a party, mandatory registration for free blacks residing or employed in any town, and prohibition of...