In 1770, a mixed-race man from Virginia, Samuel Howell, brought suit against his master to be freed from indentured servitude. His pro bono lawyer was future president Thomas Jefferson.
Howell’s enslavement was due to the law of partus sequitur ventrem. This ancient Roman law, adopted by Virginians, simply meant that whatever your mother was, you were. As punishment for having a black child out of wedlock, Howell’s white grandmother had been fined, and her child had been bound out for servitude until the age of thirty-one. That child, Howell’s mother, had borne Samuel Howell while she was still an indentured servant; under the law, it meant that her child would also be enslaved.
When Howell sued to gain his freedom, the 27-year-old Jefferson had been practicing law for only three years. By serving as Howell’s lawyer in this very weak case, Jefferson had to appear against his own beloved mentor and law teacher, George Whythe.
Jefferson, whose views on race are notoriously complicated, appears in this instance to have worked tirelessly in support of the natural rights of man, regardless of color. His brief in Howell v. Netherland contains his first known public comment on human rights.
Written five years before the Declaration of Independence, the brief includes the following statement:
“All men are born free and everyone comes into the world with a right to his own person and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because it is necessary for his own sustenance.”
Jefferson would use this idea to better effect in 1776; in this case, no one even got the chance to hear it. The judge immediately decided against Howell, cutting Jefferson off in midsentence. (Howell later solved his own problem by running away, aided with money given him by Jefferson.)
The legal brief also contains an intriguing statement about sex across the color line. Jefferson wrote that laws against such behavior were meant to “deter women from the confusion of species which the legislature seems to have considered an evil.” For a man as careful as Jefferson was about verbal precision, “seems to have considered” hints at some equivocation on his part about the inherent evils of race mixing. Although he would later profess other views, this is an important early statement about “confusion of species” from the man who would later become the father of Sally Hemings’ children.