The dragon St. George could not slay: Tucker's plan to end slavery.

AuthorFinkelman, Paul
PositionThe Legacy of St. George Tucker

In his brilliant and provocative book Justice Accused, (1) the late Robert Cover considered the slavery jurisprudence of St. George Tucker as expressed in the case of Hudgins v. Wrights. (2) In that case, Tucker upheld the freedom of the members of an Indian family whom Hudgins claimed as slaves. (3) In the lower court, Chancellor George Wythe, who had been Tucker's teacher at The College of William and Mary, declared the Wright family to be free on two grounds. (4) The first ground was racial and quite matter-of-fact. Wythe found that because the Wrights were Indians and not blacks, they were "presumptively free." (5) The second ground was constitutional and quite radical. Wythe held that the free and independent clause of the Virginia Declaration of Rights, (6) meant that all slaves in the commonwealth were free. (7)

On appeal, Tucker, then serving on the Virginia Supreme Court of Appeals, the commonwealth's highest court, upheld the lower court's decision that the Wrights were free. (8) He agreed that the Wright family members were Indians, and thus presumptively free. Because Hudgins could not prove they were descended from slaves, the presumption was not rebutted and the Wright family members were free. (9) However, Tucker emphatically rejected Wythe's argument that the free and independent clause of the Virginia Declaration of Rights was meant to end slavery in the commonwealth. (10)

 I do not concur with the Chancellor in his reasoning on the operation of the first clause of the Bill of Rights, which was notoriously framed with a cautious eye to this subject, and

was meant to embrace the case of free citizens, or aliens only;

and not by a side wind to overturn the rights of property.... (11)

Cover correctly concluded that Tucker's opinion in Hudgins reflected the actual intent of those who wrote the Virginia Declaration of Rights, as well as Tucker's own sense of legal formalism. (12) Tucker had an opportunity, it seems, to strike a blow against slavery by interpreting the free and independent clause more expansively, as had the justices in Massachusetts, who interpreted Massachusetts's free and equal clause to end slavery in the Bay State. (13)

However, Tucker's opinion in Hudgins is more complicated. The result not only reflected Tucker's formalism and his fidelity to the intentions of Virginia's framers, but it also reflected his ambivalence about slavery, his respect for private property, and his racism. His opinion in Hudgins may have secured freedom for Virginia's tiny and dwindling population of Indians, but it simultaneously tightened the chains of bondage on the common-wealth's huge black population. In his opinion in Hudgins, Tucker offered a racialist argument that led to the presumption that all blacks were slaves, unless they could prove otherwise:

 Nature has stampt upon the African and his descendants

two characteristic marks, besides the difference of complexion,

which often remain visible long after the characteristic of colour either disappears or becomes doubtful; a flat nose and woolly head of hair. The latter of these characteristics disappears the last of all: and ... predominates uniformly where the party is in equal degree descended from parents of different complexions, whether white or Indians; giving to the jet black lank hair of the Indian a degree of flexure.... Its operation is still more powerful [in] ... persons descended equally from European and African parents. So pointed is this distinction between the natives of Africa and the aborigines of America, that a man might as easily mistake the glossy, jetty cloathing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African.... Upon these distinctions as connected with our laws, the burthen of proof depends. (14)

Tucker then explained the nature and consequences of this burden of proof:

 Suppose three persons, a black or mulatto man or woman with a flat nose and woolly head; a copper-coloured person with long jetty black, straight hair; and one with a fair complexion, brown hair, not woolly nor inclining thereto, with a prominent Roman nose, were brought together before a Judge upon a writ of Habeas Corpus, on the ground of false imprisonment

and detention in slavery: that the only evidence which the person detaining them in his custody could produce was an authenticated bill of sale from another person, and that the parties themselves were unable to produce any evidence concerning themselves.... How must a Judge act in such a case? ... He must discharge the white person and the Indian out of custody ... [until] the holder ... [proves] them to be lineally descended in the maternal line from a female African slave; and he must redeliver the black or mulatto person, with the flat nose and woolly hair ... unless the black person or mulatto could ... produce proof of his descent, in the maternal line, from a free female ancestor. (15)

Thus, Tucker set out how race would be the key factor in determining status in Virginia. This was not only a description of how Virginia operated, it was also a strong reflection of Tucker's views about race, slavery, and republican values.

What should we make of St. George Tucker's relationship with slavery? How can we understand what he stood for and what he accomplished or failed to accomplish? As a law professor, he taught his students that slavery was at the least a moral wrong and inconsistent with the principles of the American Revolution. (16) Yet, as a lawyer, Tucker represented the interests of slave-owners by negotiating the purchase and sale of human beings. (17) Moreover, Tucker owned slaves throughout his adult life, acquiring "more than one hundred slaves" when he married Francis Bland Randolph in 1778. (18) Throughout the rest of his life, he bought and sold slaves as market conditions and his own finances dictated. (19) He stands out among the southern founders for his 1796 pamphlet, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia. (20) No other southerner of his generation offered a concrete proposal for ending slavery. However, a decade after writing this pamphlet, Tucker avoided a chance to strike a blow against slavery while on the Virginia Supreme Court of Appeals. In Hudgins, he overturned a decision by his mentor, George Wythe, that struck a direct blow to slavery. (21) Moreover, Tucker's opinion in Hudgins provided the legal basis for presuming that all blacks in Virginia were slaves, even though the free black population was the fastest growing segment of the commonwealth's population at the time. (22)

After Hudgins, Tucker seemed to come to terms with slavery, embracing it and encouraging his children to do so. His correspondence with his family members concerned slave purchase, slave management, the health of their slaves, the economic value of slaves, and, as his son put it in one letter, even the fundamental humanity shared by "[t]he American and African--nay the man and the brute!" (23) But Tucker did not discuss the fundamental moral problem of owning slaves or the inconsistency of slavery in a Republican society. In the end, Tucker's legacy would not be one of antislavery. After writing his Dissertation on Slavery, which urged Virginia to adopt a gradual emancipation scheme, Tucker turned his back on such reformist projects. He expressed doubts about individual emancipation, especially if tied to the death of the slave's master. (24) He seems to have favored a humane bondage, helping some families stay together (25) and even interceding to prevent the execution of a slave charged with insurrection. (26) But, Tucker also hired someone else "to flog" a runaway slave who belonged to one of his clients. (27) Moreover, for a number of years, Tucker employed a "cruel overseer" at one of his plantations, because "this brutish man ... kept tobacco, corn and wheat flowing to market." (28) Both of Tucker's sons, Henry St. George and Beverley, became defenders of the system of slavery, although in different ways. (29)

  1. TUCKER'S EARLY LIFE AND HIS CONNECTION TO SLAVERY

    St. George Tucker grew up in the slave culture of Bermuda. (30) His father, Henry Tucker, was a successful merchant, (31) whose holdings included land and slaves. St. George was comfortable with slaves and slavery; it was part of his life on an island where half the population was enslaved. (32) In this respect, Tucker's youth resembled the experiences of the Virginians, like Thomas Jefferson, with whom he would later associate. In 1772, Tucker was once again immersed in a culture of slavery when he migrated to the Virginia colony to attend The College of William and Mary at age nineteen. (33) At William and Mary, Tucker studied law under George Wythe, (34) the first true professor of law in America and the teacher of Thomas Jefferson a decade earlier. Wythe has sometimes been seen as "very nearly a surrogate father" to Jefferson. (35) Wythe's relationship with Tucker, however, was less intense, perhaps because Tucker was less emotionally needy. Nevertheless, Wythe was Tucker's teacher, mentor, and close friend. This relationship is important for understanding Tucker's views on slavery because Wythe took a strong stand against slavery, emancipating his own slaves and bravely attempting to strike down slavery by judicial fiat. (36) Tucker had the opportunity to follow his mentor's lead, but never did so.

    After studying at William and Mary, Tucker was admitted to the Virginia Bar in 1774 and then returned to Bermuda. (37) By this time, however, he was a committed patriot and returned to Virginia in 1777 as a trader who brought much needed gunpowder and salt from his native Bermuda for the patriot cause in his adopted homeland. (38) Tucker later joined the militia, earning the rank of lieutenant colonel and seeing action at Guilford Courthouse, where he was wounded. (39) In 1782, as the war...

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