tv [untitled] June 9, 2012 7:30pm-8:00pm EDT
during the 19th-century he discusses the widespread practice of renting slaves. professor finkelman taught classes and written about the slave trade for many years. this interview takes place at the organization of the historians meeting in milwaukee. it's about 20 minutes. >> american history tv is at the annual meeting of the organization of american historians in milwaukee and joining us is paul finishingleman who is professor of law and public policy at the albany law school. thanks for being here. you are here because you're participating in a panel that's called new perspectives on the 19th-century slave trade. >> right. >> what did you talk about in your discussion today? >> well, the panel talked about
two pieces of the slave trade, one was kidnapping of black children from mostly philadelphia, but also other places where they were free and this is something that historians have known a lot about but there's not been very much research and so two of the panelists were able to discuss, research that is ongoing about kidnapping gangs and this is really kind of an early version of trafficking people because you have free people -- you have free people grabbed off the streets, thrown into ships, taken to delaware, maryland and from there transported further south. >> delaware, maryland would have allowed the slave trade. >> well they wouldn't. it's illegal every where. kidnapping free people is illegal even in mississippi, it's illegal to kidnap a free person. the difference is that pennsylvania is in the process of ending slavery, most of the blacks in pennsylvania by 1810
are free, and so free black children who are on the streets in pennsylvania are free, but in maryland and delaware slavery is an ongoing institution and so the presumption of the law changes. once you get into a slave state the presumption is that if you're african-american you're a slave. and so if someone is taking a black child through maryland, nobody is going to intervene and say why are you carting this black child off if the black child is chained, no one will say why are you carting this black child off. they will assume the child was a slave. whereas if you're doing it in pennsylvania, you would be stopped by all kind of people saying why your kidnapping this child. >> who is behind these gangs? >> people who are professional criminals. most interesting one is a named patty canon. she has a gang of kidnappers including some mixed race people, that is people who are both of african and european
descent who enticed children on the theory that children will be more comfortable with peers who are african-american. the more interesting piece in some ways -- i shouldn't say more interesting because they are both interest, that tells us something about human trafficking which has been going on for a very long time and also suggests that trafficking in children which is an international problem today is nothing new. and maybe it's easier to traffic children because they are less able to assert their rights, they are less able to escape, esable to fight back. so that's one piece of it. the other piece of the panel was about the interstate and the intrastate renting of slaves. and this is really fascinating. because it turns out that significant numbers of slaves at sometime in their life are rented out. the most common time when you're rented out would be when your
master dies. the worse day of a slave's life is the death of the master because when the master dies it means to masters estate is going to be dispersed among the heirs and that means slave families will be broken up, slave communities will be broken up, they will be separated from people they always lived with. the most famous example thomas jefferson. >> who handled the renting. >> someone dies. they have a will. the deceased person has a will. the will names an executor. and the first thing the executor does is to payoff the debts of the estate and ethipoito disper property. it can take many years. often the way to disperse the property is to sell slave, auction them off to various parties. again, the most famous example probably in american history is
the settlement of thomas jefferson's estate where close to 200 slaves are auctioned off in one day. four or five of jefferson's slaves get free. one of them, his blacksmith is freed and jefferson says in his will that the blacksmith can be not only free but live on monticello and have his blacksmith tools and live in the cabin with his free. he forgot to free his family. so on the day he got free he saw his family get auctioned off to different buyers. that's the end point of settling the estate. the middle point from the death of the master until the settling of the estate, the executor has to do something with slaves. and often the easiest thing to do is rent them out to other people so that a man dies leaving 15 slaves, his widow will eventually get the use of some of these slaves, his
children will get the slaves. the executor will come in, i'll rent the slaves out and have a steady cash flow. what we find is almost every american slave or a vast majority of them at some point in their life are rented out to someone else. now here's where it gets interesting. we're in the middle of the sesquicentennial of the civil war. one of the great questions is often asked is why do so many nonslave holding southern white men fight and die to preserve slavery. slavery is the cause of the war. and if people don't believe me they can go look at the declaration of the causes of secession by any one of the southern states, south carolina, georgia, texas, they all same the same thing we're leaving the union to protect slavery. why does the rank-and-file nonslave holders. people ask that. we have an answer. many nonslave holders are in
fact slave renters. so they are involved in the slave economy. they are renting slaves. they are using slavery. slavery is important to their livelihood even if they don't yet own slaves. one kind of modern example would be why do people who don't own homes believe in the private ownership of homes? because they are renting a home now and some day they hope to buy a home. >> how big was the slave trade prior to the civil war? >> well, there are two. first the african slave trade that brings people to africa. that end in 1808 legally. starting january 1, 1808, it's illegal to bring a slave into the united states. that slave trade probably brought 400,000 people to what becomes the united states. from the 1650s until 1808.
by the way, that's a very small piece of the larger atlantic african slave trade. millions went to brazil, millions went to the caribbean, far fewer went to what becomes the united states. with the closing of the africa jan slave trade you have a trickle illegal slaving but it's really a trickle because the penalties are huge, and the complexities of the illegal trade really diminish greatly. there's much more of an illegal slave trade to cuba where spanish authorities simply turn a blind eye. once the african trade end the domestic trade picks up dramatically. millions of american slaves will move west. some of them will be brought by their masters. that is somebody in virginia is moving to alabama, he takes his slaves with him. often, though, somebody in virginia will simply say i have excess slave, i will sell those slaves to a slave trader, the
slave trader will transport the slaves to alabama, to mississippi, to texas, to arkansas, to louisiana, the heart of the southwestern cotton boom. >> the children of those slaves, they themselves become slaves as children of born into slavery so the numbers increase. >> the numbers increase. and america has a very large slave population that reproduces rather rapidly. this is due to a combination of many things, one of which is simply climate. the american climate is healthier than brazil or the caribbean. the food supply is better. the work while horrendous is not lethal the way sugar planting is. so the american slave population grows from a couple million after the revolution -- actually from a million after the revolution to 4 million by the
end of the civil war. >> you teach a course called slavery and the law. >> right. >> tell bus that course. >> people often ask me why do you teach slavery and the law and it's not on the bar exam. that's true. i teach it for a couple of reasons. first much of american constitutional law actually is still based on precedents that were created by slavery. the oddest and most obvious example is the electoral college in the constitution. why do we have an electoral college. why don't we elect the president directly. james madison says the best thing is for the people to directly elect the president i.e. popular vote. al gore beats george bush because he has more votes. madison says there's two problems with that. first the difference in the
franchise. meaning that in south carolina only adult white men who own a certain amount of property can vote whereas in massachusetts all adult men, black, indian, white can vote and in new jersey even women can vote. so what madison is saying is that we would have a difference in the franchises as to who can vote and that would skew the election to favor some states over others. that could have been dealt with, you know, the constitution could have said all adult males or adult white men. they weren't going to franchise women could vote in the president's election. a lot of ways to do it. then madison says the most par is there are slaves. he doesn't mean the slaves who vote. what he means is that if you have a presidential election that's a popular vote there won't be slaves voting. so virginia, which is the largest state population wise becomes the third largest state if you don't count the slaves. so how do they get around it with the electoral college which
is based on congressional representation, which is based on counting slaves for three fifths of the congressional representation sponsorship the result is the three fifths clause which counts three slaves out of every five towards congressional representation gives the south extra representatives in congress and gives the south extra muscle in the electoral college and that's how we get the catastrophe in bush v gore. so there are real day-to-day consequences from american law that developed out of slavery. a bunch of other doctrines, something called the dormant clause. something called domestic police powers begins with slavery .teach it for that reason. but the other reason to teach it is because the law is a powerful tool. law is used to create societies, to help make society better, but law can also be used to make society much worse and i atheist an important thing for a lawyer
to understand the power of the law to do evil as well as to do good. you learn from our mistakes. and it's kind of shocking to see well educated, intelligent judges making decisions that by our standards are absolutely horrible because those decisions are supporting slavery. the most famous example, the dred scott decision where the chief justice says blacks have no rights that the white man needs to respect. he was probably right constitutionally. that's shocking. >> i read the court also looks at british law. how did the british resolve this slavery issue? when did they end slavery and how did they end it differently from the united states. >> well, except for the civil war that's a big exception. we'll get to that in a second. britain deals with slavery and the law in sort of three phases.
the first phase is a decision by the chief justice of the court of kings bench, lord mansfield in 1772 known as the somerset case. somerset was a slave in virginia brought to england by his master who was a colonial bureaucrat, worked for a while in virginia, came back to england. once somerset gets to england i don't want to be a slave. lots of free slaves. his master james stewart grabs somerset and brings him back and has him chained to a ship to send him to barbados to be sold. abolitionists get rid of habeas corpus, bring the case before lord mansfield and lord mansfield says slavery can't exist by common law can only
exist by what he calls positive law and since there's no statute creating slavery in england it's against to hold someone as a slave against his will. that's 1772. many scholars and i'm one of them believe that one of the reasons for the american revolution was that southerners did not want to be tied a england where there was a legal precedent that said slavery couldn't exist except by positive law and if they brought their slaves to england they close their slaves. somerset scares southern masters because it's saying slavery is immoral. it's legal in all the american colonies but not in the mother country. that's the first step. second step is in 1807 england bans the slave trade to all of its colonies. in 1808 we do the same thing. that end new slaves coming in to
the caribbean, but you want doesn't end slavery in the caribbean. then in the 1830s, england pass as law to end all slavery in the caribbean, paying masters a small sum for every slave, having some apprenticeship programs to ease the transition from slavery to freedom, and by 1837 there's no slavery in the british western hemisphere. >> do you have any idea the numbers that were in the caribbean, under the british empire? >> you know, this is something where i wish you asked me before i went on cam remarks i would have looked it up. but it's probably 3 or 4 million slaves. >> many more than originally in the u.s.? >> that's right. that's right. here's the difference. in england the basis of the empire is englarngsd itnd it's
britain, it's the united kingdom not barbados or jamaica okay. it's united kingdom telling barbados, jamaica okay you're getting rid of your slaves, you have no sense. england is doing something to somebody else in the empire. they are ending slavery. you can make the argument if you're an american slave you're better off in the british empire than the american republic because you'll be free a lot sooner >> you're a law professor here at a conference of historians and history professors and teachers. >> right. but i ham a ph.d. historian. >> what is the perspective of the law particularly slavery that you would impart to people teaching history that they are not teaching now? >> well, the first thing i would do and this came up in my panel as well, is that when you look at things like renting slaves, when you look at things like kidnapping, you have to understand the full legal implications of slavery.
slavery is a pervasive system and it pervades the legal system. i'll give you one example. one of the panelists noted that when we're dealing with kidnapped black children the only witnesses would often have been free blacks but the panelists then goes on to say but the southern states, maryland and delaware would not relax their rules to allow blacks to testify in these cases. and the point is that throughout the south nowhere can a black testify against a white. so you can't relax a rule in one instance because the whole system comes tumbling down. so despite the fact that it's a crime to kidnap free blacks in delaware and maryland you can't let blacks testify because if you let blacks testify against whites then the whole racial basis of slavery begins to crumble and in law talk, law professors talk about the camel's nose under the tent, the idea that the camel's nose
sunday the tent next thing you know you have the whole camel in the tent. or the slippery slope. the big slippery slope if you allowed back against a white ever, you lose the whole game. so part of the importance of understanding slavery is to understand that it has a dramatic legal superstructure which keeps it going. and this links us all the way back to the question of human trafficking because heme often talk about slavery in the united states as modern slavery, or the modern slave trade. there's a huge difference between human trafficking today and human trafficking in slaves in the 19th century. that big difference was it was illegal then. and it is -- it was legal then, and it is illegal now. so today, if somebody is trafficking in the united states, all that person has to do is go to a law enforcement officer and say, i'm being held
against my will. help me. there's no fugitive farm worker law in the united states. many of the women who were trapped ended up in the sex business. there's no fugitive sex worker business. if a woman is being forced against her will to do things, all she needs to do is walk out of where she is, tell someone who is a law enforcement person, and unless that is a corrupt cop, she's going to be protected by the law. that's the difference between a fugitive slave today and a trafficked person. the fugitive slaves then and the trafficked person today. now i'm not saying by the way, this is always easy. often a trafficked person is afraid to talk to law enforcement officers. they're afraid they'll be sent back to their home country. there are lots of reasons why they don't do that, but the legal structure is very, very important. when we fight modern trafficking, we can't keep using the slavery analogy because it leads us down the wrong path. our legal toolbox to fight
trafficking is enormous. where as the legal toolbox to fight slavery was very small. >> paul is a professor of law, public policy at albany law school. thanks for the conversation. >> thank you very mitch. >> next, an archival film about the berlin wall created in 1962 about a year after the berlin wall was constructed. it's ten minutes. ♪
>> we have lived in the shadow of the wall for more than a year. it cuts through the heart of berlin. we have learned to live with it. we refuse to think that it will always be this way. in the beginning, we waved across the wall to our families in east berlin. it didn't matter who watched us. but later, the communist policemen came and stopped our families from waving.
>> my mother lives over there. they will move her away if she dares to wave. it's forbidden. i speak to my children in east berlin with hand signals, making certain the guards are not watching. i don't want them to harm my family. we have become good with our signals. at dusk, the communists have a hard time tracking us down. but we take chances, especially on nights when an escape is planned.
in the beginning, many people escaped in broad daylight by jumping out of windows facing the western sector of the city. our firemen were there to help. we remember the woman being held by communist guards to prevent her from joining her family. they even threw tear gas at those who were below, ready to catch her.
that's when they decided to extend the wall and cut access to the buildings facing west berlin. they sealed every window. many brick layers came over to our side of the wall rather than do that kind of job. they strung barbed wire on the roofs to close off another way of escape. many homes along their side of the wall were razed.
our loud speakers told the communist guards that to shoot a refugee was murder, that they would be held accountable, that they could not claim orders from higher up. murder is always murder. on a friday afternoon, they shot an 18-year-old boy as he was trying to scale the wall into west berlin. they let him bleed to death on their side of the wall. then they took his lifeless body and took him away. his name was peter. he was an apprentice bricklayer.