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tv   Supreme Court Justices Pre- Civil War Slavery  CSPAN  March 3, 2018 12:55pm-2:01pm EST

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base in his new book, the professor argues that these three justices prolong slavery. this event was hosted by the national archives. it's about an hour. >> for most people along out of lessonsnd memories of -- in the war of 1812 and to beginning of the civil war. it saw the emergencies of a growingly increasingly divided nation. then to deal with the questions of slavery and its expansion. among the voluminous records of the federal court at the national archives are hundreds of freedom suits and cases brought by slaves seeking to
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obtain their freedom. such method to the supreme court, where the final decision became one of the most infamous decisions of the court's history. normalst looks at three -- three notable supreme court justices and how they upheld the institution of slavery after the first chief justice of the united states. paul finkelman is the president of the college in greater philadelphia. he held the full chair and human rights and social justice at the university of ottawa school of law. or as a visitor, including the franklin chair and american legal history. so scholarly him articles
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including three for the national archives magazine prologue. including american legal history. and constitutional law, american slavery, the first amendment. civil rights and legal issues surrounding american sports. numerous other courts and many briefs. please welcome paul finkelman. >> thank you very much for those of you who are working scholars and genealogy or family history. we are in the temple of our world. this is the most important building in the united states
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with the possible exception of the library of congress. they hold the and remission that makes us whole. if we are to understand our world we have to understand how we got to where we are. and having our eyes go bleary and having an 18th century to 19th century handwriting. i want to ask equity to give a round of applause to the archive staff. [applause] i have spent far more hours in the archives and i can count and every one of them has been enjoyable.
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i think the archives for allowing me to come here and talk about my latest book. it cannot be what it is without the archives. i want to start by telling you how you came to discover something that is really new to say. and i decided to give the three lectures on the major supreme foundingtices from the to the civil war, which would be chief justice john marshall i gave the lectures on how they dealt with slavery. taney was easy. he was the author of dred scott. for many people, you do not need to say anything else. although in the book, you will discover that what we see as shocking in dred scott was not
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new for taney but rather that he spent an entire career believing what he wrote about dred scott. you will discover that what we see as shocking in dred scott is not new for taney, but taney spent an entire career believing what he wrote in dred scott. what is interesting about working backwards from taney to marshall is that many scholars look at taney's dred scott opinion and say, how could the chief justice write this? or they say, by this time he was a very old man and he is writing an opinion that should not be taken -- that should not destroy his career, because he was a great justice before this. some scholars say taney's opinion is an aberration. what is he remembered for? he is remembered for arguing in dred scott, asserting that the constitution does not allow african-americans to be citizens, even if they are born free, even if they are living in a state where they are allowed to vote and hold public office
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and participate completely in all of the civic and citizenship related rights of white people, he says they are not citizens. and this is shocking. and yet, it shouldn't be because when taney was attorney general of the united states, he sent a memo to andrew jackson saying that free blacks cannot be citizens of the united states. what he said in dred scott, he had already said 25 years earlier, and he had said this in different ways throughout his career. talking about dred scott and slavery and talking about taney and slavery is really the easiest of the lectures. story is more complicated because he is from new england, the massachusetts justice. we would expect joseph story to be an anti-slavery justice.
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when we look at story's early career as a member of the supreme court, we find he is in fact vigorously anti-slavery. in those days before the 20th century, supreme court justices did something that is called riding circuit. they would sit in washington and cases, then go back to the circuits they were from. for story, the new england circuit. they would go to the federal district courts and sit with the federal district judge and hear cases on what was called the circuit courts. so if you lost in the district court for the district judge , you might appeal to the circuit court, which would consist of the same district judge, plus a supreme court judge. in some cases, cases would go directly to the circuit court depending on the nature of the case. in addition, because he was a supreme court justice, story would give charges to the grand juries. so 1819 and 1820, story tours
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new england and give charges, ordering federal grand jury is in providence, boston, manchester, and ultimately main -- in maine when maine becomes a state, to investigate illegal trading in slaves, to investigate americans violating the laws against the african slave trade. these charges are phenomenally powerful and vigorous in his condemnation of slavery and his condemnation of the way in which americans are involved in slavery. but after that, story hears one case involving the slave trade where he reaches the same sort of conclusions. it was a case called la jeune eugenie, a french ship actually
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owned by americans, a phony french registration. the ship involved in the trade. story hears this case and he is vigorously anti-slavery. and if joseph story had passed away in 1821 or 1822 or 1823 and after -- that case was 1822, if he passed away after that, he would have gone down in history as the most vigorous opponent of slavery to sit on the supreme court until the 1850's. he would be an anti-slavery hero. sadly for his reputation, story's life continues for a long time. obviously, he does not think it is sad his life continues.
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[laughter] mr. finkelman: for those of us who do legal history, story is one of the great justices and in legal scholars of our history. but in the rest of his career, he backpedals from his anti-slavery positions, so that by the end of his career, he is vigorously arguing that the fugitive slave clause of the constitution allows southern whites to go into the north and grab any black person they see and claim that person as a fugitive slave and not have to bring that black person before any kind of judge or magistrate, but as story says, if they can do it without illegal violence -- capture a black without violence -- they can bring that black south and it will be the southern state which will decide whether they caught the right black person. of course, the question of illegal violence is like the will great philosophy question -- if a tree falls in the woods
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and no one hears it, did it make any noise? will so if slave catchers go to a cabin of black people in the north in the middle of the night and they capture them, was there any illegal violence? a because there was nobody there to witness it. so in the end, story goes from being a vigorous opponent of slavery to being one of the great defenders of fugitive slave rendition -- capturing fugitive slaves. and in the end, the abolitionist william lloyd garrison calls will story the slave catcher in chief for the united states. and i think that is a fair i analysis in terms of his jurisprudence. i i knew about story when i gave my lectures at harvard, i knew about taney. marshall was different, because you i read the biographies of marshall.
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all the biographies -- i literally mean all of them -- say the same thing. he owns very few slaves. owned very few slaves. they all say he owned a dozen house servants in richmond. that's a kind of a euphemism -- they did not want to say he owned slaves, so he owned house servants. the biographers say he was not involved in slavery in any economic way, and they say he heard very few cases involving slavery. and that was the lecture i gave at harvard a few years ago on this subject. then of course, i was told, you have to write your lectures up into a book. i easily wrote the last two chapters on story and taney and i struggled on the marshall chapter because i did not have anything new to say. i could not figure out why you have a third of a book when all you are doing is repeating what everybody else wrote.
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i wrote a draft chapter that basically said he owned a dozen slaves in richmond. i pointed out that's actually a lot, that that would make him a multimillionaire today, that this is not an insignificant number, not only a dozen slaves. my students always ask, how much is a slave worth? i say about as much as a car. they say, what kind of car? the answer, of course, is what kind of slave? if he owned a dozen slaves, he was a very wealthy man. the other thing the biographers say is that he wanted to free his personal servant, robin. in his will, he has a codicil, something he added to the end, saying, it is my desire my slave robin should be free, if he wishes. again, everybody who writes about marshall says, isn't he a nice guy?
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he is such a nice guy. he is freeing his loyal servant , robin. i wrote all this, thinking i really want to see this piece in the will. i can't rely on what other people said. so i read the will and it says, yes, i want to free my servant , robin, if he is willing, and if he will go to liberia, i will give him $100. that is a lot of money in those days, not an insignificant sum, but it is not going to last long in liberia. of course, robin is elderly by this time. he may be african-american, but he is not african. he has never been to africa. he was born in the american colonies. his parents were probably born in the american colonies. his grandparents may have been africans. my grandparents came from holland and ukraine and what is today moldovia.
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i don't consider myself moldovian. he is going to send robin back to africa with $100, or if robin is willing to go to another state, he can have $50. so robin can take $50 and move to philadelphia. that may last and 3-4 months, and then what is this elderly man going to do? or he can remain in virginia, but not get any money. i am thinking, this is a very wealthy man dying, and he wants to do something nice for his loyal servant robin. why didn't he give him a couple hundred bucks to stay in richmond? furthermore, what he does not say but he knew because he was a lawyer and lived in virginia -- for robin to stay in virginia, robin had to have special permission of the local court, and that would require a lawyer or at least an educated person,
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somebody who could read and write, to go before the court and ask the court's permission to allow robin to stay in richmond. now, why doesn't lawyer john marshall do this? why doesn't marshall put in his will -- and i direct my executor to hire counsel to ensure that robin can remain in richmond? why doesn't he offer him $100 to stay in richmond with his family and friends and all the people he has ever known? why do you ask robin to accept freedom only if you are willing to accept exile? that led me to think harder about marshall's will, so i read the whole will. what i found was very interesting. the will does talk about a dozen slaves.
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in 1827, marshall names 12 slaves who should be given to his wife when he dies, along with the unnamed children born or to be born of the slave sally. so actually, the dozen slaves now maybe 15, but nobody is going to make the reputation as a scholar by saying, marshall had 15 slaves, not 12. that's not a big deal. cut him some slack here. he rewrites the will in 1831 and then names the 12 slaves, plus now the unnamed and unnumbered children of the slave becky. i don't know what happened to sally's slaves. we are still into 15, maybe the 18 range. then i read the rest of the will, and it becomes fascinating. i give to my nephew thomas my tract of land at chickahominy, suburban richmond today.
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and i give him the annual profits from the land, and i give him all the animals on the land, the farm equipment, and all of the slaves. and i am thinking, wait a minute, this is more than a dozen slaves. how many are at chickahominy? then i look at the next clause, and the next clause says, i give to my son edward -- who lives out in what was then western virginia about 50 or 70 miles west of washington, d.c. -- i give to my son edward the land he lives on with all the usual number of slaves. and i give to my son john the land he lives on with all the usual number of slaves. so i am beginning to think that maybe there are more than a dozen house servants in this will. and i contacted a friend of mine who was also a freelance scholar and a graduate student at morgan
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state. some of you may know her. she lives in the washington, d.c. area. she is also a superb genealogist. i said, i would like to hire you to find out how many slaves marshall had on these lands in chickahominy. how many are on his son edward's? the first thing she comes back with is, 62 slaves at chickahominy. 62 is a lot bigger than a dozen. then we discover in 1827, marshall has said in his first will, i give to my son edward the land and slaves. in 1831, the will says, i give to my son edward the land, the slaves having already been conveyed. so he has given edward some of his inheritance in advance.
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1830 census says edward has 27 slaves. so 62 chickahominy, 27 on edward's lands. there are 30-odd slaves on john's land. all over fauquier county, there are landholdings of john marshall's, slaves everywhere. my guess is that john marshall owns in 1830 before he conveys the 27 slaves to his son, that he owns more than 150 slaves. but we also discover he has another son, jaquelin, who is a physician, who never has much of a career as a physician, who is also moved out there and is really a gentleman farmer. he has 40 slaves in 1830, or 47 slaves. he had none in 1820.
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you don't go from zero slaves to 45 or 47 slaves in 10 years unless you are winning the powerball lottery, which does not yet exist, or your daddy john give you a bunch of slaves. and it turns out that in 1830, between marshall and his sons, the marshalls own approximately 250 slaves. it seems likely that in addition to the 150 or so that are in john's name, the other 100 or so were conveyed to john's sons at various times. they may have added to these slaves, but the slaves had been acquired and given to the sons. that leads to the question -- first, how did so many scholars miss this? how did so many not notice these hundreds of slaves that john marshall is acquiring?
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i don't want to get into that. for one thing, most biographers of marshall are good friends of mine. [laughter] mr. finkelman: i hope they remain good friends of mine. i sent an email to two of my friends who are marshall scholars when i first discovered the chickahominy slaves. i said, i just found this out, what do you think? one of them wrote back and said, i was so interested that i went to ancestry.com to see for myself. i had actually said he had 65 slaves. this scholar came back and said, you are wrong, you counted the overseer and his wife and son, he only had 62. he says he has a dozen, i said he had 65. i am off by three, he is off by 62. i also credit him with the dozen in richmond. the other scholar wrote back, i wish i had done the research you
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have done. what are the questions about this? this is a question about scholarship. why have so many eminent scholars, so many really first-class historians, ignored all this evidence? i think the reason is in part that people approach history in different ways. a constitutional historian approaches john marshall as the great chief justice, and by any standard, john marshall is the great chief justice. he has a statue in front of him in the supreme court. he has a statue inside the supreme court. he has been on a commemorative silver dollar, on four u.s. postage stamps, on the $20 treasury note in 1890 and 1891, and the $500 federal reserve note in 1818.
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he is the only supreme court justice to make it on our money, more than one postage stamp, have statues. there are four john marshall law schools, including the very distinguished marshall wythe college of law at the college of william and mary. so marshall is our great chief justice. if we look at the decision cited most by the court itself or the top 10 decisions cited most by the court itself, five of them are marshall opinions. this is pretty impressive. he is the great chief justice. if you write about john marshall, you want to write about his jurisprudence and the way he establishes the supreme court as a central entity within american government, as a coequal branch with congress and the presidency. that we see in every text.
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we all learn how in marbury v. madison, marshall establishes the court. and in mcculloch v. maryland, marshall tells the states they may not interfere with federal jurisprudence when the federal government has the power to do something. and we remember marshall as a fearless chief justice who stares down thomas jefferson in jefferson's vindictive attempts to get aaron burr hanged for treason, who stares down andrew jackson perhaps in the cherokee cases, although i would argue that that is not really the case. so people write about marshall in this way and they don't want to think about slavery because slavery is not on their agenda. that is one of the great problems of how we do american history. next month, we will celebrate black history month.
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i am delighted that there is black history month. i wish it were 12 months long, along with white history month, american history, indian history, and other kinds of history. in fact, you can't separate african-american history from american history. they are intertwined in hundreds and thousands and millions of ways. [applause] mr. finkelman: thank you. but constitutional historians write about the great chief justice. and there is a whole other body of writing about civil rights, slavery, other things. so we need to begin to integrate this together. so i start looking at marshall's slave holdings, and i am truly
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shocked. he is not the guy we think he is, he is somebody else. then i looked at the wonderful collection that charles hobson edited, the papers of john marshall. hobson has taken most of the known marshall documents, edited them, annotated them, published them in hard copy books. they are a treasure trove. among others, there are almost two volumes of marshall's business records from the 1780's and 1790's. in these records, we begin to see john marshall becoming a slave owner. unlike his cousin, tommy jefferson, john marshall did not inherit hundreds of slaves. john marshall was given one slave at his wedding, the slave robin, who he later claims he would like to emancipate.
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later on, his father gives him a couple other slaves. basically, john marshall does not come from a wealthy background and he acquires slaves the good old-fashioned american way, by buying them. what we see in his personal records is that he is constantly buying slaves. this is, again, a fascinating analysis, a fascinating set of information. i just want to read you a little bit of this. i don't like reading from text, but this is so detailed, i have to stare down. in october 1783, marshall buys the slave moses for 74 pounds. he is not yet using dollars. it is just after the revolution. he also buys shoes for hannah, another slave, although we don't know when he acquired hannah. on july 1, 1784, he spends 90 pounds for a bed. three days later, july 4, the
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first anniversary of the declaration of independence since the peace treaty with england confirmed we were indeed a free nation. he buys two slaves for 30 pounds, probably children named eddie and harry. he pays 20 pounds more for two more servants. marshall, of course, always uses slave and serving -- servant interchangeably. in september, he spends another 25 pounds for unnamed and uncounted servants. in november, he buys esau, in 1784 he purchases harry. in 12 months from october 1783 to 1784, marshall buys nine named slaves and numerous unnamed and uncounted servants. these are in addition to slaves he apparently already owns. some of these are brought to his house in richmond. by the way, he is a recently
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married, very young man, has no children yet, does not yet own a mansion in richmond, and you wonder why is he buying so many slaves? the answer is, because john marshall has figured out the path to riches in virginia is land and slaves, and he is aggressively acquiring all he can. in 1785 -- sorry, 1786, he pays 50 pounds for two slaves. 1787, israel for 50 pounds. in may, he spends 50 pounds for a woman bought in gloucester. he makes a down payment of 11 pounds for two more slaves in june. and he pays for the burial of sam and complains he lost his investment. on july 4, 1787, another independence day, marshall buys
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more slaves and pays for other slaves he has previously purchased. during a four-year period, marshall acquires at least 15 named slaves and numerous unnamed slaves. we don't know how many. we also don't know how many slave families are destroyed by these purchases. sometimes he buys children. at one point, he buys a mother and her child, but does not say if the woman has other children, if the woman has a husband -- we don't know. we only know that marshall, going out into the countryside, a rising political figure in virginia, a rising lawyer in virginia, is taking his legal fees and acquiring slaves wherever he can. and he will do this for the rest of his life, because as i mentioned, by 1830, his slaves number in the hundreds.
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we will never know how many slaves marshall owned. the records are not clear. he apparently destroyed most of his financial records before he died. we don't know why. he kept all his letters, all his lawyer's letters, all his supreme court correspondents. -- correspondence. he does not want us to know about his personal life, maybe because he is afraid some snarky historian like me is going to come along and investigate these things. but he apparently forgot about these account books from the 1780's and 1790's, so we have them. the result is that chief justice marshall is an enormously wealthy man, owning hundreds of slaves. he lives what is considered to be a modest life. he does not own a plantation mansion with giant columns. rather, he owns an in-city, in richmond, house, which is quite substantial.
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we would say urban mansion today. but he also owns the plantation in chickahominy and owns land further out. he also, during the 1780's and 1790's, acquires approximately 215,000 acres of land. if you can wrap your head around what 215,000 acres of land looks like -- that he buys from the estate of lord fairfax, the royal governor of virginia on the eve of the revolution. i want to turn briefly -- because we are running out of time and i want to give everyone time to ask questions -- turn briefly to marshall's jurisprudence, because i think it is tied to his slaveowning. this is not simply -- ok, marshall owned slaves, big deal, what does that tell us about anything, other than he is a rich virginian? while on the court, marshall
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decides more than 50% of all the cases that come before the court. it is marshall's court, particularly in the period up through the 1820's. marshall dies in 1835, but before he dies, he dominates the court, except perhaps the last 10 years. if we look at the decisions in the first period from 1801 until the late 1820's, it is marshall's court. in it is a period when marshall writes one dissent. it is a period when very few other justices dissent. and so when marshall writes decisions, it is because marshall favors the decisions. when he doesn't write decisions, i think it is usually because either it is in an area of expertise he does not want to all write in, or because he really doesn't like the outcome, but he is not going to dissent, because unlike today the court
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is extremely collegial and uninterested in dissents. if we look at marshall's jurisprudence, we discover there are 14 cases that come before the supreme court involving whether or not slaves are free. if we look at marshall's jurisprudence, we discover there are 14 cases that come before the supreme court involving her whether or not slaves are free. and that is a lot of cases involving black freedom when you consider the expense and difficulty of someone who is claimed as a slave trying to get a case before the supreme court. limitedonsider the very supreme court jurisdiction in these matters, most of these
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matters come out of the district of columbia. if there is a d.c. case, it goes to the supreme court. that is the old way to appeal. most of them involve slaves imported into the district of columbia. district of columbia local law is covered by maryland where we are today, and for a while by virginia law in what is today alexandria, virginia. some of you may know originally, alexander was once part of d.c.. in 1848, there was the retro session where they gave alexandria back to virginia. these cases involve what happened in those jurisdictions. those jurisdictions are governed by maryland and virginia. -- virginia law. i don't want to get into the technicalities. we don't have three or four hours to explain them. i think i do a good job in the book.
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the simple issue is this, if you moved to the district, you had to register the amount of slaves you brought to the district. you had a certain amount of time to do it and you had to assert you are moving to make it your permanent residents. -- residence. you could not import slaves if you lived in the district unless you inherited them. you could not go to virginia, buy a slave, and bring it to the maryland portion. under virginia law and maryland law, this was the rule. importation was illegal in many cases, or a required registration. there are seven cases involving registration that reached the court where marshall decides the case. in every one, the blacks lose and the slave owner wins. in a few of these, the jury of
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the district of columbia, a jury of 12 white men, that probably includes slaveowners, presided over by a judge who is also a slave owner, these juries have declared the slaves to be free. you have the case were a slave wins his freedom before a jury, the master appeals to john marshall, and john marshall reverses the decision. in the case of one slave, marshall complains that if you read the statute strictly, the slave will be free, but we have to read it according to the spirit of the law rather than the actual law. in another case, he says, -- i will read it. the act of its expression is
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certainly ambiguous. the one construction or the other may be admitted without great violence to the words employed. if there was ever a moment when the great chief justice of america has the opportunity to side in favor of liberty, freedom, and human rights, this is the moment. the statute is ambiguous and i can decided one way or another. he decides against the slave. in another case, the slave is suing for the right to sue for her freedom. the case has not going to trial. the only evidence she can offer is what is called hearsay. evidence of people who say that her mother was freed and everyone in our community knew her mother was free and nobody was alive who could prove it and we have no documentary evidence. she is asking for the right to bring this evidence to court to
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sue for her freedom. marshall says in his opinion, he can perceive no legal distinction between a claim to freedom and any other right. this is fairly astounding that there is no difference between owning a wagon or a horse and a person being allowed to be free for the rest of their life. marshall says we cannot allow this hearsay evidence because all property in america would be in jeopardy. he says, no man could feel faith in any property if a claim to which might be supported by proof so easily obtained. that is to say, if we allow this slave woman to provide evidence she might be free, it would jeopardize all property in america. this is based on maryland law.
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sitting on the court is justice gabriel devault. he had previously been a chief justice in maryland. he writes the only dissent of his career. a long dissent in which he condemns marshall's opinion by saying, in maryland, we always give leeway to slaves who have freedom claims. he said he had heard many claims like this and you always allow this kind of evidence, because as he says, people of color from their helpless condition under the uncontrolled authority of the master are entitled to all reasonable protection, a decision that says hearsay evidence shall not be admitted cuts up by the roots all claims of the kind and puts a final end to them, unless the claim can be revived by a recent date which is unusual. you have the former chief justice in maryland saying we always allow these claims and marshall claiming that we can
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never allow this because it jeopardizes all property in america. my sense of this case, and this is where i will end so you have the opportunity to ask questions. my sense is that marshall on the court and thinking of a the hundreds of slaves he has purchased throughout his life and will continue to persis -- purchase, and he is wondering about the hundreds of slaves he has purchased throughout his life. he is thinking, will i purchase a slave that will later come along and have a valid claim to freedom and will i lose my investment? the maryland woman's name is mima queen. she will not get to be free and her children will not get to be free. i think marshall is seeing her the way he saw the slave he had to pay for his burial he had to pay for. it is a lost investment. one of the stories of this is the economic interest of the
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justice and his investments in how he makes his money indirectly affects his jurisprudence. marshall has an immediate economic claim to this case, marshall is not making money, i am not suggesting corruption. i am suggesting something perhaps worse than corruption , which is that the way that you view the world is determined by the investment in human flesh that john marshall has made throughout his life. thank you. [applause] paul: there are microphones on either side and i should warn anybody who asks a question that c-span is filming us so if you don't want to be a tv star, don't ask a question. >> thank you, dr. finkelman.
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while i am not an apologist, is a 50-year alumnus of morgan state university, i apologize for the low estimate of slaves owned by john marshall. having said that -- dr. finkelman: morgan state had nothing to do with these low estimates. i mentioned morgan state only because a graduate student of morgan state helped me track this down. you should raise the morgan state flag. mr. corbyn: -- >> you did mention morgan state and i thought i would make that comment. dr. finkelman: to praise the place. >> having said that, i will ask that during that time of 1785-1835, slavery was characterized or defined as a
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slave being shackled. even today they use that term shackled, coming from cattle, which auto dealers now purchase their automobiles from manufacturers, and they have a shadow. dr. finkelman: technically a chattel is just a movable piece of property. , chattela is chattel is the difference between real estate which is not global, and chattel. >> the point that i am making is that if a slave was chattel during that period, how can one make a distinction between a non-slave and slave under a chattel? what i'm asking is, why would
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there be a distinction legally since you're a historical , scholar, why would there be a distinction between a slave and chattel. if you are defined as chattel, you are chattel. dr. finkelman: here is the answer with marshall or anyone else. if you have a claim to a car, and you go to the license bureau and you say i want a license plate, they say, show us your title. show us the proof that you own this car. you say, here is the title. they look at it and say, how did you get it? i bought it from joe. the title was original and joe's name. joe got it from the dealer. that is the chain of title. in these freedom suits, the chain of title is not clear. in the case of mima queen, her
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argument was that her mother had always been free. if her mother was free, her mother was never a slave, so she was never legally a slave, even though some man came along and grabbed her and said i will make you a slave. another case i did not talk about, but this illustrates it even better. there is a woman in maryland who sues for freedom on the grounds that her mother was never a slave. the maryland court says, you are free. this man is illegally holding you. you go free today. the maryland supreme court upholds that. you are free forever and you were never a slave. the woman's children have been taken to washington, d.c. they sue in washington, d.c. and they claim, we are free because our mother was never a slave, and under american law you can only be a slave if your mother was a slave. our mother was never a slave.
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here is the maryland decision saying our mother is always free, therefore we are always free. marshall says that the owner of the slaves in washington, d.c. does not have to be tied to the maryland decision because he was not part of the maryland case. duvault who gives the dissent in this case, but in the record of the supreme court, duvall argues with marshall from the bench and says, this is not the law. every slave in the country -- slave state in the country would have upheld their freedom. there are cases in virginia, north carolina, mississippi, alabama, in places that would surprise you that would say if you can prove your mother was never a slave, then this and must let you go, unless you go
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before chief justice marshall. this is what is so surprising. >> thank you for the talk. from the perspective of what you talked about, chief justice marshall is a man from modest means. knowing the law and designing the law at that time, developing economics for himself and his family. what is your feeling -- you said not corruption, but do have a gut feeling of something shady for records to be destroyed that you are not allowed to see at your point in this investigation? what did the land developed? dr. finkelman: i find nothing in marshall's records or character that would be shady. i don't see him as dishonest or corrupt. i always get the question, did he have children with his slaves? it always comes up. if you like his cousin tanya at monticello.
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the answer is that there is zero evidence of this. he is not that kind of person. what i do see is that when we look at his jurisprudence, it is important to see that the way he sees the law, it is perhaps a function of what goes on in his personal life. that as john marshall's decisions on land ownership make a lot of sense when you realize he owns 215,000 acres of land. he owns large chunks of what is today i-66. he is a land speculator his whole life. similarly, his decisions on freedom dovetail with his economic interests. i mentioned there were 14 freedom cases, marshaled aside
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seven and the slaves lose in everyone. justice johnson decides the eighth and the slaves lose. and the other six, the slaves win and two are decided by slave-holding justices, justice wayne and justice duvall. being a slave owner does not mean you would never side with freedom if the law requires it. but marshall is actively engaged in acquiring slaves his whole life and distributing them to his sons. why did he destroy his financial records? i think there are people who just don't want somebody messing in their private papers. i think it is always tragic. the contrast between john marshall is the other great supreme court justice named marshall, thurgood marshall.
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he not only does not destroy his papers but on his death gives his papers to the library of congress and says they are to be open to researchers immediately. many great justices give their papers and say i want a 50-year hold, i don't want embarrassment. marshall says, it's all there, take a look at it. >> thank you for the insight that you provided. in the last 50 years, scholars like you have done something very tremendous. you have explored the depths of our history to establish the truth. that is very important. the additional fact is, what is your opinion in regards to these kinds of developments that are predicated on deceit, dishonesty, and delusions. -- delusions? when we look in american history, we never get to the kind of insight that you shared
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this afternoon, but instead we go into intellectual gymnastics to justify what was wrong and it could not be justified. can you explain how this happened that, unfortunately, we ended up not knowing the truth and not knowing the whole story of our history? dr. finkelman: how many hours do i have? [laughter] >> take your time! dr. finkelman: i have five minutes. let me give you the quick and dirty answer. when you do the history of your own country, i believe that you are obligated to open it all up and tell it all. the problem with that is, sometimes you show things that are unpleasant and ugly.
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sometimes you show things that are glorious and marvelous. i could write another book, i hope to write more books. i could write another book on southern slaveowners who freed their slaves. i give you the contrast between john marshall and someone else. there is a man named edward coles, the neighbor of thomas jefferson and the personal secretary of madison. -- james madison. that is like the chief of staff today. he inherits about 20 slaves as a young man. during the war of 1812, as a young man, has madison's personal secretary, he resolves to free his slaves. after the war, he writes a letter to his neighbor, jefferson. he says, i have always admired you because you have said that we were created equal, you have laid out the philosophy of liberty.
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i want you to know i have taken you seriously and i will take my slaves to ohio and free them. jefferson right a fascinating writes a- ri fascinating letter in which he says, i have waited patiently for the generation raised on the mother's milk of liberty. you have to love jefferson's writing. the mother's milk of liberty to take power and do these things. the first historians to publish this letter published it in 1944 in a small pocket to thomas jefferson, letters, papers, essays, etc., and it goes on for two pages about the mother's milk of liberty and it ends, your obedient servant, thomas jefferson. these editors left on the last four pages when he tells coles
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not to free the slaves, and says that free blacks are pests on society. he wrote the virginia legislature to ask them to fund moving free blacks to africa, marshall uses the word "pests" as well. he says they are pests on society. jefferson says do not give up your inheritance. coles ignores jefferson, freeze -- takes the slaves to illinois, freeze them all, and later becomes the governor of illinois. he prevents an attempt by southern migrants in illinois to bring slavery to illinois. we can find lots of people who are hurled, a lot to sacrifice their own economic value. general ulysses s. grant before
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he is a captain in the armor is -- army, is dirt poor. he marries a woman whose father is a man of some means. and he owns some slaves. he gives grant a slave as a wedding present. grant is our last slaveowning president. a year later, he moved to illinois, he is on the verge of bankruptcy, he is desperate, and the one asset he has is his slave. rather than selling his slave, because that will talk his economic problems, he moves the slave to illinois and freeze the the slave, even though it is at great economic cost. greg would go on to free other slaves. grant would go on to free
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other slaves. that is why grant is one of the great heroes of the united states. the contrast is there between the people who do nothing and the people who, at personal sacrifice to themselves, do something. we have to have a history of both. i honor thomas jefferson for the language he gave us, i honor him for the declaration of independence. i don't honor him for his life as a slave owner. we have to learn to balance that. one of the great problems for any country is to come to the conclusion that most of our heroes are not 100% heroic. they are people and human. at the same time a -- time, when we make people heroes, it is important to hold them to a higher standard. i wrote a lot about thomas jefferson. one of my critics said, why are you criticizing thomas jefferson for slavery?
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he was just like any other man of his time. my answer is, we don't put just anybody on the nickel. we don't just put anybody on the two dollar bill. we don't just put anybody's name on one building of the library of congress. we put people who were better than the men of their times. two more questions. >> wonderful talk. owning 250 slaves, where did he rank among the top slaveholders in virginia? dr. finkelman: no idea. he had a lot of money. he would have been on the forbes richest 1000 men in virginia. he is rich. >> thank you, professor. such an enlightening lecture. you said that john marshall wasn't corrupt, it was his perspective, his view of his life and his investment that influences decision. -- influenced his decisions.
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one thing that i love about history is, you can look at history to see who you are as a society today. i'm concerned about our court judges now, particularly the ones being nominated who are not even qualified intellectually to do the job. and our current supreme court, particularly, from my viewpoint, that we are depending on justice kennedy to have a conscience. how, as a society, can we function when we depend on these individuals to have the perspective that you hope will bring justice in 2018? dr. finkelman: [laughter] um -- i think the answer is this. we are all prisoners of our own political times, for good or evil.
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if we don't like the politics of the moment, then our obligation is to change that in any way we can. that means voting, actively participating in the political structure. we have, in many ways, invested in the supreme court more power than some think it should have. some say, the united states is governed by five votes. five votes in the supreme court changes the world. it does to some extent, but it doesn't to other extents. i think that most of the justices, all of the justices have a conscience. i think the justices on the court are put there by presidents who have a political
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agenda, and the justices reflect that political agenda. it is the obligation of justices to get beyond that political agenda, to jettison the political agenda, to forget about the political world they came from and to look at law, justice, fairness, and equity, as it comes before them and not how they might have looked at it when they were more political. i think that by and large many justices do that. i don't think all justices do that. we are stuck with that. one of the virtues of being an historian is that i know things will change because they always do. the pendulum swings in both directions. in terms of justice kennedy, justice kennedy has done some remarkable things, some of which
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i completely agree with, and some of which i don't. i think that he will continue to do things that i agree with and don't agree with. if i look at the jurisprudence of chief justice marshall, you can find many wonderful opinions, as long as i don't think about things like slavery. if i look at the jurisprudence of chief justice tawny, i find good decisions as long as i don't think about race, equality, and slavery. it is important to think about everything and it is important to know about everything. if my book had a meaning beyond understanding how we got to where we are -- that is what historians do best. we don't do modern politics, we do the past, and as the archives say, the past is
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prologue. we have to understand the past to understand how we got to where we are. i hope my book will get some people to think that maybe we need to think very hard, not merely about the education of a perceived justice, not merely about whether the person was a good lawyer, but is the person a decent human being? that matters all the time in politics and justice. thank you very much. [applause] dr. finkelman: one more announcement, which is the most important. >> there is a book signing one level up in the archive bookstore. we will see you there in a moment. [captioning performed by the national captioning institute, are watching american
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history tv, 48 hours of programming on american history, every weekend on c-span3. forow us on twitter information on our schedule and to keep up with the latest history news. historian richard brookhiser talks about the founding fathers who influenced abraham lincoln, george washington, thomas payne and thomas jefferson. mr. brokaw is or is the author of "founder's son: the life of abraham lincoln." welcome to the second presentation in the series on the legacies of the founding fathers. of the as president society of the four arts. if you have a cell phone with you, make sure it is

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