Howell v. Netherland

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.

(Gordon-Reed, 99-101)


Filed under 18th Century

2 responses to “Howell v. Netherland

  1. 1. We actually assume but do not know that Jefferson fathered Sally Hemings’ children. Certainly the familial DNA is there, but he wasn’t the only Jefferson with motive and opportunity. I, frankly, don’t care. Having been born into the world thinking myself a white man, then, in the course of growing up, learning that a great grandfather was black, and a grandmother was Native American, I am thunderstruck that my parents got away with miscegenation.

    2. Note the “confusion of species” remark. This carries forward in Notes on Virginia, in which Jefferson propounds a natural science observation that caucasians and africans are, either distinct species, or that africans are a sub-species of homo sapiens. His controversial view — obviously wrong now — led to his being branded heretical and suffering substantial opposition during the election of 1800 from Congregationalist ministers in the northeast, who viewed his opinion as one endorsing a theory of creation inconsistent with the Genesis account.

    • R. Todd

      Since Jefferson carried on a sexual relationship with Sally for well over 30 years, we can safely assume that he fathered at least some of her children. Sally first became pregnant while in France with Jefferson.

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