The Hemingses of Monticello: An American Family (25 page)

Apparently, some of these freedom suits were brought under a system that allowed fee shifting: the losing side had to pay the costs of the action.
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This made sense for slaves filing petitions for freedom and explains, in part, why some lawyers were willing to take on clients who could not pay. Fee shifting is designed to prevent litigants from wasting the court’s time by bringing or defending suits where the outcome is virtually predictable. Certainly slave owners in Paris who chose to fight their slaves’ freedom petitions were essentially wasting the Admiralty Court’s time, because the conclusion was foregone. Even with that, very few slaves had sufficient funds to pay a lawyer’s fee. Unless the lawyer had some deep philosophical purpose for getting involved, it made no sense to spend time working on cases for which he would have received no compensation, and end up losing money for time and effort spent, although one wonders how much “work” had to be done, given the court’s track record for freeing everyone who filed a petition. The possibility for fee shifting might also explain the reverse in the ratio of masters’ declarations of freedom and slaves’ petitions for freedom, mentioned previously. If certain victory by the slaves meant paying lawyer’s fees, it might have seemed better to forgo that by just emancipating the slave and, perhaps, keeping him or her on as an employee if the former slave was so inclined.

James Hemings could have afforded the cost of hiring a lawyer on the salary Jefferson paid him once he became the chef of the household. Unlike enslaved petitioners who had no money, he was drawing a decent salary by Parisian standards. The range of yearly pay for live-in domestic male servants in the city was between 100 to 150 livres per year. The range of pay for a cook in an upper-class household, considered a high-level servant in the 1780s, was between 200 and 250 livres. Jefferson paid Hemings 288 livres per year. When his sister Sally arrived and began to receive a regular wage, she was paid at the rate of 144 livres per year, again, a good deal more than the average of 100 livres for female domestic servants.
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Jefferson paid all of his servants in France at a very high rate. He also paid them in a manner atypical for the country. French household servants were usually paid on a yearly basis. That they received wages at all was a mid-eighteenth-century concession. In earlier times French servants signed on with an employer with the expectation of getting a room, food, and clothing from their masters. That was their payment—that plus the “benefit” of being in the company of their social betters, from whom they could learn manners and styles of presentation, and have the protection of being associated with a good household. The advent of wages brought the contract with wages to be paid at the end of the term—a year or six months, for example. Of course, money at the end of a given term is, at best, hypothetical money, and on some occasions the employer did not pay. The servant was left either to sign on for another term, with the hope of receiving the last year’s wages, or to leave the master’s service and then fight over the separation payment. James and Sally Hemings, by contrast, had money in hand every month. They could save some or all of it because they did not have to pay for housing and food. Their pooled resources gave them enough money to afford lawyers who did not work pro bono. Indeed, some of the lawyers who did work pro bono on freedom suits might actually have welcomed any level of contribution they could get from a client.
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Finding a lawyer would not have been terribly difficult either. By the late 1780s, officials at the Admiralty Court itself provided referrals to lawyers who they knew worked on freedom suits.
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It enraged French colonials, and others who favored restrictions upon blacks in France, that the results of the invariably successful petitions in Paris were widely disseminated in the city, alerting other blacks to the possibility of taking the same route. There were people in Paris, most likely blacks and their most ardent supporters, who wanted to strike a blow against slavery on French soil and sought to spread the word about the Admiralty Court as an avenue to freedom. One French official complained that the “posters and
mémoires
” (case reports) put up around the city talking about the freedom suits encouraged blacks to think they were equal to the “superior beings they were destined to serve.”
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The status of blacks, or
gens de couleurs
, was part of a larger conversation. Along with the Enlightenment talk of natural liberty in general, the abolition of slavery became a particular focus of attention for a number of prominent Frenchmen during the very time that Hemings was in Paris. The Société des Amis des Noirs, the Society of the Friends of the Blacks, was founded in 1788, although some of its members had been meeting to discuss the issue and promote abolition as early as 1786. The Société approached Jefferson about joining their effort. He declined, explaining that he thought it would be inappropriate for a government official to join such an organization, since it might be taken as the American government’s endorsement of their aims.
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The Société was extremely elitist, highly theoretical, and largely ineffectual in its aim to influence the French government, primarily because there was no legislative body for it to appeal to. It pressed its claims through newspaper articles and pamphlets that put its members’ views into wider circulation than they would have been had they simply confined themselves to meeting in one another’s homes. They helped inject abolitionist sentiments into public life as part of the discourse about the rights of man that paved the way toward revolution.
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Hemings did not know French at first and probably could not enter that discourse at a high level until near the end of his five-year stay in Paris. But it would not take much to have a sense of the issues being discussed, not only in his own home by the Anglophone residents who lived there but also in the outside world in which he moved.

Even fifteen-year-old Patsy Jefferson got caught up in the spirit of the times. In 1787, not long before her sister arrived with Sally Hemings, she issued a literal cri de coeur when she wrote to her father, “I wish with all my soul that the poor negroes were all freed. It greives my heart when I think that these our fellow creatures should be treated so teribly as they are by many of our country men.”
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Patsy wrote this when there was only one enslaved black person in her immediate world: her uncle. She cannot have written those words, had those thoughts, without considering how her wish, if carried out, would have affected him. This was, for all the transplanted Americans at the Hôtel de Langeac, a time and place to think about the world in a different way.

Slave or Free? Black or White?

One wonders just how James Hemings described himself and how Jefferson described him to the people they encountered. Did the French men and women in their circle understand that he was enslaved and not simply Jefferson’s servant? Even in Virginia, Jefferson, like others of his cohort when they wrote of enslaved people, preferred to call them by that less morally charged term “servants.” If he continued to avoid the use of the word “slave” in France, it is possible that his French acquaintances did not know the status of the young man who sometimes attended him and who eventually had charge of his kitchen.

There are good reasons to believe that Jefferson was not always forthcoming about having a slave in his home. Two years after Hemings and he arrived in the country, Jefferson engaged in some altogether extraordinary correspondence with a man named Paul Bentalou, whom he had met in Williamsburg. Bentalou had been in the town as the commander of a “troop of dragoons” and was an aide-de-camp of the famed Count Casimir Pulaski during the American Revolutionary War. He settled in Maryland during the 1780s.
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While in France in 1786, he sought Jefferson’s advice about how his wife might “keep her Little Negro-Boy” as a slave while she resided in the country for about eighteen months. Bentalou, citing Jefferson’s well-known benevolence, wanted the minister to intercede on his behalf with the French ministry to make the argument that the Bentalous should be allowed to keep the child, who was “between Eight or Nine years old.”
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Jefferson, in full self-protective mode, wrote back to Bentalou,

Jefferson was the “person” he was describing. That was probably not obvious to his correspondent, and Jefferson was unwilling to make it clear to him. Surely his anecdote about “a person bringing in a slave” would have been more meaningful to Bentalou had he known that the American minister to France was the unnamed individual. That, however, would have required Jefferson to admit in writing that he was breaking the law. He did not go into detail about his reasoning, or whom he consulted, but the letter indicates that he was, just as he said, basically conversant in the law on slavery in France.

Jefferson was disinclined to make a formal declaration of his ownership interest in Hemings and in his sister, when she arrived later. He believed (correctly) that the Admiralty Court, following the lead of the Parlement of Paris, under whose jurisdiction he lived, would not uphold his property interest in the enslaved brother and sister if they decided to challenge him. His statement that “it [would] be easier,” in Bentalou’s case, to say nothing because the boy was so young highlights his more precarious situation with twenty-one-year-old James Hemings. He had a young man in his household, not a little boy; a young man who had a far greater range of movement and freedom than the enslaved child in Bentalou’s home would have had, far more ways to learn about his status in France, and more confidence that he could assert his rights.

Despite his knowledge of French law on slavery, Jefferson seemed not to make, or know, perhaps, the distinction between what was going on in Paris and what was going on in other parts of the country that were less zealous in upholding the Freedom Principle. He spoke of “the laws of France” as if there were no differing interpretations of the law elsewhere in the country—as in fact there were. Over the years, jurisdictions outside of Paris had dutifully registered and attempted to enforce all the edicts and declarations that curtailed the Freedom Principle. Indeed, Bentalou, who wrote to Jefferson from Bayonne, was in just such a jurisdiction—Bordeaux, which was heavily invested in the French slave trade. The admiralty court there was likely more inclined to act on the provisions of the
Police des Noirs
than its Parisian counterpart.
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Most tellingly of all, Bentalou was French. He had “adopted” the United States as his home. Registration had been at the heart of every eighteenth-century declaration on the status of slaves in France.
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French officials always wanted information about how many blacks were in the country and where they were. Just as people in the United States have long understood the peculiarities of differing regions in the country about certain social matters, Bentalou was familiar with that very basic rule about registration and knew that he was in a part of his native land that was likely to take it seriously. That is why he knew he had to ask for a “dispensation” from the law and understood that, if he did not get it, the boy could be sent home. While Jefferson was aware that Bentalou (and he) had a duty to let French officials know that they had brought slaves into the country, he thought that alerting the authorities to the boy’s presence would provoke the youngster to claim freedom and that, if he did, he would be set free with no conditions. Bentalou’s letter indicates that he was writing not long after the boy had arrived in France. If he had registered him quickly, there would have been no question of his actually losing a property interest in his slave. He would simply have had to pay to send him home.

Although Jefferson had far more cause than Bentalou to think that his slave would be unconditionally freed, he ended up being right for the wrong reason. His counsel—silence—was not legal, but it was perhaps the best practical course for Bentalou’s interests as a slave owner. Enforcement of the law was lax in many parts of the country because of difficulties of administration and outright hostility to it, but to have directly approached the authorities in a jurisdiction like Bordeaux would have been to dare officials there to uphold the law and force Bentalou into doing what he did not want to do: send the enslaved boy back to Maryland. Given the boy’s age, and the Bentalous’ concerns, the local officials might not have been inclined to send him home alone, especially since Mrs. Bentalou did not plan to stay in France very long. But the couple could not be sure of that. If they followed the law, the decision would be out of their hands.

Nothing in Jefferson’s circumstances in France encouraged him to be forthcoming about having an enslaved person in his household, and much militated against it. Unlike Bentalou, Jefferson came to Paris with a self-image as the revolutionary author of the Declaration of Independence and valued his connection to some of the philosophes of French society who shared his views on the natural liberty of all mankind and took seriously his denunciations of slavery. Registering James and Sally Hemings with French authorities, and perhaps attempting to argue for some dispensation to keep them there during his tenure, would have put his status as a slave owner front and center for no good reason. A confrontation with an admiralty court had only disadvantages.