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tv   Supreme Court Justices Pre- Civil War Slavery  CSPAN  February 25, 2018 8:55pm-10:01pm EST

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three of the most influential pre-civil war era supreme court justices. robin d 20, joseph story and chief justice john marshall. book,alk east on his new "supreme injustice." he argues that rulings by these three justices prolonged slavery in the united states. this event was hosted by the national archives and is about one hour. >> for most people long out of school thinking back on u.s. history it dredges up memories of lessons on the revolutionary war. establishment of the constitution. and the war of 1812. and then jumps to the beginnings of the civil war. the in between times may be indistinct but it saw the emergence of a increasingly divided nation. throughout this time, the federal government time and time again had to deal with the questions of slavery and its
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expansion. among the the luminous records of the federal courts europe the national archives, are hundreds of freedom suits. cases brought by slaves seeking to obtain their freedom. one such case initiated by dred scott in 1846 made it all the way to the supreme court where the final decision became one of the most infamous decisions of thethe history of the court. our guest today looks at three notable pre-civil war supreme court justices and how the uphill the institution of after the first, chief justice of the states, john marshall. joseph story and chief justice roger came. paul finkelman is the president of grants college in greater philadelphia. before taking this position he held the fulbright chair in human rights and social justice at the university of ottawa's school of law. he has held a number of endowed chairs and was a tenured
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professor including the chair in american legal history at the duke law school. he authored more than 200 scholarly authors including three or the national archives of was the author or editor a number of books including on constitutional law, the american -- american jewish history, civil rights and legal issues surrounding american sports. has -- numerous other many appellate briefs. ladies and gentlemen, please welcome paul finkelman. [applause] many thank you, thank you very much. for those of you that are scholars or have done
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genealogy or family history, you realize that we are in the temple of our world. this is the most important building in the united states with the possible exception of the library of congress. the two, they hold the information that makes us whole as people and as americans. if we are to understand our world, we have to understand how we got to where we are and the is by understand that coming here and getting our hands dirty and looking at really old stuff and havinghandt really old stuff and having our eyes go bleary trying to read 18th and 19th century handwriting. i want to ask everyone to give a round of applause to the archives staff. [applause] scholars or have they are the people who make the kind of books that i write
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possible. i have spent far more hours in the archives than i can count and every one of them has been enjoyable. and so, i think the archives for allowing me to come here and talk about my latest book. this book could not be what it is without the archives. so, i want to start by telling came to discover that newe was something really to say. a number of years ago, i was asked to give a series of at harvard how -- new university. i decided to give the three lectures on the major supreme court justices of the period from the founding to the civil war at harvard university. which would be chief justice john marshall, associate justice joseph story and chief justice roger --. i gave the lectures on how they dealt with slavery.
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easy. was 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 in dred scott s 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 right 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 as career, because he was great justice before this. some scholars say taney's opinion is an aberration. what is he remembered for? user members were arguing in dred scott, asserting that the
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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 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. scott, heid in dred had already said 25 years earlier, and he had said this in different ways throughout his career. talking about dred scott and taney is really the easiest of the lectures. the story -- story is more
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complicated because he is from new england, the massachusetts justice. we would expect joseph story to be an anti-slavery justice. story's earlyt career as a member of the supreme court, we find he is in fact vigorously anti-slavery. in those days before the 20th justicessupreme court did something that is called riding circuit. they would sit in washington and here cases, then go back to the circuits they were from. four-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 judge, you might appeal to the circuit court, which would assist -- consist of the same district judge, plus a supreme court judge. in some cases, cases would go
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directly to the circuit court depending on the nature of the case. because he was a supreme court justice, story would give charges to the grand jury's. story towards20, tours newd -- story england and give charges, ordering federal grand jury is in providence, boston, manchester, and ultimately main 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. that, story here is
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one case involving the slave trade where he reaches the same sort of conclusions. case about a french ship actually 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 1822, ifthat case with 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. anwould be an 18 -- anti-slavery hero.
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sadly for his reputation, story's life continues for a long time. obviously, he does not think it is sad his life continues. [laughter] mr. finkelman: for those of us who do legal history, story is one of the great justices and legal scholars of our history. but in the rest of his career, he backpedals from his , so thatery positions 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
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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 great philosophy question -- if a tree falls in the woods and no one hears it, did it make any noise? 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? 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 story the slave catcher in chief for the united states. and i think that is a fair analysis in terms of his
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jurisprudence. i knew about story when i gave my lectures at harvard, i knew about taney. marshall was different, because i read the biographies of marshall. all the biographies -- i literally mean all of them -- say the same thing. he owns 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 service. 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 if you years ago on this subject. then of course, i was told, you have to write your lectures up into a book.
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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. 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. codicil,ll, he has a
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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? he is freeing his loyal servant robin. this, thinking i really want to see this piece in the well. i can't rely on what other people said. so i read the will and it says, yes, i want to free my servant , and iff he is willing 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.
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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 mold audio -- moldavia. 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 moved to philadelphia. that my 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 enrichment -- stay in richmond? furthermore, what he does not
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say but he knew because he was a lawyer and lived in virginia -- for robin to stay in virginia, robin had to have special ,ermission of the local court and that would require a lawyer or at least an educated person, 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 executornd i direct my 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?
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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. 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 w
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ill, and it becomes fascinating. i give to my nephew thomas my tract of land at chickahominy, suburban richmond today. 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 were 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. thatam beginning to think
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maybe there are more than a dozen house servants and this will. mine contacted a friend of who was also a freelance scholar and a graduate student at morgan 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. in 1827,iscover 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
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slaves having already been conveyed. so he has given edwards some of his inheritance in advance. 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 from your counting -- county, thereier 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 , who isson, jacqueline a physician, who never has much of a career as a physician, who is also moved out there and is
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really a gentleman farmer. in 1830, or 47s slaves. he had nine in 1820. 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. 1830, turns out that in between marshall and his sons, s ownarshall zon approximately 250 slaves. additionlikely that in 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.
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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? 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. them that you mail 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 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.
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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 enrichment. the other scholar wrote back, i wish i had done the research you 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
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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. 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 school's, including the very distinguished marshall wythe college of law at the college of blame and mary. so marshall is our -- 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 of the top 10 decisions cited most by the court itself, five of them are martial 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
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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. 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 jeffersons vindictive attempts urrget ehrenberg -- aaron b hanford region, who chairs down andrew jackson perhaps in the cherokee cases, although i would argue that that is not really perhaps the case. so people write about marshall wantis way and they don't
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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. 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. separateyou can't 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
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slave holdings, and i am truly 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, publish 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. , tommyhis cousin jefferson, john marshall did not inherit hundreds of slaves. john marshall was given one slave at his wedding, the slave
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robin, who he later claims he would like to emancipate. later on, his father gives him a couple other slaves. basically, john marshall does not, 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. 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.
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he also buys issues for hannah, another slave, although we don't know when he acquired hannah. on july 1, 1784, he spends 90 pounds for a bed. 4, theays later, july 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. usesall, of course, always slave and serving interchangeably. in september, he spends another 25 pounds for unnamed and uncounted servants. u, invember, he buys esa 1784 he purchases harry. in 12 months from october 1783 to 1784, marshall buys nine
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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 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.
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and he pays for the burial of sam and complains he lost his investment. on july 4, 1787, another independence day, marshall buys more slaves and pays for other slaves he has previously purchased. period, four-year 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
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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. 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 lawyers letters, all his supreme court correspondents. 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.
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he lives what is considered to be a modest life. he does not own a plantation mansion with giant columns. an in-city, in richmond, house, which is quite substantial. we would say urban mansion today. but he also owns the plantation in chickahominy and owns land further out. andlso, during the 1780's 1790's, acquires approximately 215,000 acres of land. if you can wrap your head around what do i did 15,000 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.
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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 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. inwe look at the decisions the first period from 1801 until the late 1820's, it is marshall's court. 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.
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when he doesn't right decisions, i think it is usually because either it is in an area of expertise he does not want to write in, or because he really doesn't like the outcome, but he is not going to dissent, because unlike today the court is extremely collegial and uninterested in dissents. if we look at marshall, there are 14 cases that come before the court involving whether or not slaves are free. says that marshall heard relatively few freedom cases. i would argue that relatively is clearly a relative number. i would argue that 14 cases are a lot involving black freedom when you consider the expense someoneiculty of
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claimed as a slave trying to get a case before the supreme court. when you consider the limited supreme court jurisdiction in these matters, most of them come out of the supreme court of columbia. it goes is a d.c. case, to the supreme court. that is the old way to appeal. involve slaves imported into the district of columbia. district of columbia local law is coveredc by maryland where we by today, and for a while virginia law in what is today alexandria, virginia. retro8, there was the session where they gave alexandria back to virginia. these cases involve what happened in those jurisdictions.
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those jurisdictions are governed by maryland and virginia. 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. the 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. 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.
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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. the jury ofthese, the district of columbia, a jury t probablye men, tha 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 winces 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
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to read it according to the ratherof the law than the actual law. in another case, he says, -- i will read it. the act of its expression is ambiguous. the one construction or the other may be admitted without great violence to the words employed. moment when ever a the great chief justice of america as 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. slave isr case, the suing for the right to sue for her freedom. the only evidence she can offer is what is called hearsay. evidence of people who say that her mother was freed and
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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 sue for her freedom. , hehall says in his opinion can perceive no legal distinction between a claim to freedom and any other right. there is no difference between owning a wagon or a horse and a person being called -- allowed to be free for the rest of their life. marshall says we cannot allow this 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.
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that is to say, if we allow this slave woman to provide evidence she might be free, it would jeopardize all property in maryland. 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. claims he had heard many 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 either ro -- by the roots all claims of the kind and
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puts a final end to them, unless the claim can be revived by a recent date which is unreasonable. in have a chief justice maryland saying we always allow these claims and marshall saying you can never allow this because it jeopardizes all property in america. so you where i will end have the opportunity to ask questions. on thee is that marshall cord is thinking of a the hundreds of slaves he has purchased throughout his life an -- thinking 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? woman's name is m ima queen. she will not get to be free and
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her children will not get to be free. it is a lost investment. is of the stories of this the economic interest of the 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 byw the world is determined 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
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anybody who asks a question that c-span is filming us so if you don't want to be a tv star, .on't ask a question >> while i am not an apologist, is a 50 your alumnus of morgan state university, i apologize for the low estimate of slaves owned by john marshall. dr. finkelman: morgan state had nothing to do with these low estimates. i mentioned morgan stayed only because a graduate student of morgan state helped me track this down. you should raise the morgan state flag. >> you did -- mention morgan state and i thought i would make that comment. dr. finkelman: to praise the place. askaving said that, i will
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that during that time of 1 was1835, slavery characterized to find -- a slave of being shackled. they use that term shackled, and --from cattle, technically a chattel is just a movable piece of property. it is the difference between real estate, which is not movable, and chattel. >> if a slave was chattel during that period, how can one make a distinction between a non-slave
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and slave under a chattel? what i'm asking is, why would th eir be a legal distinction, 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. car,u have a claim to a bureou go to the license au 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.
9:42 pm from the that is the chain of title. thehese freedom suits, chain of title is not clear. queen, her of mima 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. 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. her children have been taken to washington, d.c.
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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. here is the maryland decision saying our mother is always free,. therefore we are always free. owner ofsays that the 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. dissent ins not this case, but in the record of the supreme court, duvall argues with marshall from the bench and says, this is not the law. slave in the country -- slave state in the country would have upheld their freedom.
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there are places in alabama, in missouri. places that would surprise you that say, if you can prove your mother was not a slave, you are free to go, and lesser justice is chief justice marshall. this is what is so surprising. >> 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. you said not corruption, but do you have a record of anything destroyed that you are not allowed to see at this point? 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
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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. the answer is that there is zero evidence of this. he is not that kind of person. when weo see is that look at his jurisprudence, it is important to see that the way is perhaps aaw, it function of what goes on in his personal life. marshall'sn decisions on land ownership makes sense when you realize he land.15,000 acres of he owns large chunks of what is today i-66. he is a land speculator his
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whole life. similarly,'s decisions on his decisions on freedom dovetail with his economic interests. i mentioned there were 14 freedom cases, marshaled aside 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 duval. l. being a slave owner does not mean you would never side with freedom if the law requires it. actively engaged in acquiring slaves his whole life and distribute in them to his sons. why did he destroy his financial records?
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don'tare people who just want somebody messing in their private papers. i think it is tragic. the contrast between john marshall is the other great supreme court justice named marshall, thurgood marshall. he not only does not destroy his gives but on his death his papers to the library of congress and says they are to be open to researchers immediately. theirreat justices give papers and say i want a 50-year hold, i don't want embarrassment. there,l says, it's all take a look at it. >> thank you for the insight that you provided. in the last 50 years, scholars like you have done something tremendous. you have explored the depths of our history to establish the truth. that is very important. what istional fact is, your opinion in regards to these
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kinds of developments that are predicated on deceit, dishonesty, and delusions. when we look in american history, we never get to the kind of insight that you shared 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 wepened that, unfortunately, ended up not knowing the truth and not knowing the whole story of 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
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and tell it all. the problem with that is, sometimes you show things that are unpleasant and ugly. sometimes you show things that are glorious and marvelous. i hope to write more books. i could write another book on southern slaveowners who freed their slaves. the contrastu between john marshall and someone else. there is a man named edward thomasthe neighbor of jefferson and the personal secretary of madison. that is like the chief of staff today. 1812, as awar of young man, has madison's personal secretary, he resolves to free his slaves.
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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. i have taken you seriously and i will take my slaves to ohio and free them. s aferson says, write fascinating letter in which he s ays, 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 pocket tosmall thomas jefferson, letters, pap and it goes on for
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two pages about the mother's milk of liberty and it ends, y our obedient servant, thomas jefferson. these editors left on the last four pages when he tells coles not to free the slaves, and says that free blacks are pests on society. he wrote the virginia legislature to ask them to fund to africa, blacks 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 his slaves in illinois, and later becomes governor. he prevents an attempt by southern migrants in illinois to
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bring slavery to illinois. we can find lots of people who -- general ulysses s. grant before he is a captain in thearmor is dirt p -- army, is dirt poor. whose fatherwoman is a man of some means. he gives grant a slave as a present. he 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, he moves the slave to illinois -- andeze the bash f
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frees the slave. even had great economic cost. 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 at personalho, 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. when we make people heroes, it
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is important to hold them to a higher standard. i wrote a lot about thomas jefferson. why arey critics said, you criticizing thomas jefferson for slavery? 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. namen't just put anybody's on one building of the library of congress. we put people who were better than the men of their times. two more questions. 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.
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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. 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, viewpoint,y, from my 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] -- i think the answer is
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this. ownre all prisoners of our political times, for good or evil. 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 moree supreme court, per 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.
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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 agenda, and the justices reflect that political agenda. it is the obligation of justices to get beyon d that political agenda, to jettison the political agenda, to forget about the political world they came from and to look at law, equity, fairness, and as it comes before them and not how they might have looked at it when they were more political. large manyt by and 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
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do. the pendulum swings in both directions. in terms of justice kennedy, justice kennedy has done some remarkable things, some of which 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. the jurisprudence of chief justice marshall, you can find many wonderful opinions, as long as i don't think about things like slavery. if a 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. beyondook had a meaning understanding how we got to
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where we are -- that is what historians do best. we undo modern politics, we do the archivesas say, the past is 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
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level up in the archive bookstore. we will see you there in a moment. [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] you are watching american history tv, every weekend on c-span3. forow us on twitter information on our schedule and to keep up with the latest history news. each week, american artifacts takes viewers into archives, museums, and historic sites around the country. the national archive center for legislative archives in washington, d.c., houses clifford berryman's popular political cartoons from the early 20th century. his work is still relevant 100 years later and is featured in


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