Paul Finkelman is currently the John E. Murray Visiting Professor of Law at the University of Pittsburgh School of Law, where he teaches Constitutional Law and a seminar on the law of slavery. He received his PhD in U.S. history from the University of Chicago and his BA in American Studies from Syracuse University. He specializes in American legal history, slavery and the Founders, American slave law, modern human trafficking, the Civil War era, U.S. Constitutional history and law, the legal history of race relations, the history of Civil Liberties, the history of the electoral college, Constitution and firearms regulation, and Baseball and Law. He is the author of more than 200 scholarly articles and more than forty books. His next book, Supreme Injustice: Slavery and America’s Highest Court, will be published by Harvard University Press in 2017. His work on legal history and constitutional law has been cited four times by the United States Supreme Court, numerous other courts, and in many appellate briefs. He was an expert witness in the famous Alabama Ten Commandments Monument Case and in the law suit over the ownership of Barry Bonds’ 73rd home run ball. He has also recently worked with HeinOnline to create a free database called Slavery In America and the World: History, Culture, and Law, which he discusses below. This interview was conducted by Candace Jackson Gray at Morgan State University in Baltimore, MD on November 30 and December 1, 2016.
GRAY: In your recent visit and talk to graduate students at Morgan State University, you gave a few pieces of advice. Would you please expand your advice about how historians and other disciplines can use legal history, or the law in writing. And what you suggest for graduate students in history to think about in course and thesis/dissertation work for research that incorporates legal history?
FINKELMAN: Legal Materials provide insights into a wide variety of aspects of American society. Statutes passed by legislatures tell us what a society formally thinks of itself. We know that not ever society lives up to its own aspirations, but even understanding those aspirations is useful. Laws also allow use to test the stated values of a society with its actual practice. Laws on race and civil rights help us understand where states and the national government were headed at various times in our history. Sometimes laws reveal a great deal. Virginia, for example, prohibited blacks from testifying against (or for) whites but the legislature reenacted this law a few times because apparently in some parts of the colony baptized Africans and African Americans were being allowed to testify because they were Christians. Records of trials, arrest records (police blotters), records of cases over divorce, child custody, or suits for back wages allow us to “hear” people who are often otherwise silent in traditional documents and records that historians use. I have worked a lots with trials of slaves and in those records we are able to hear the voice of the slave — although often filtered through white lawyers, judges, and court clerks. In almost all areas of U.S.history laws, cases, opinions of judges, and other legal records can provide us with sources.
GRAY: What are the biggest challenges for those of us who write or are future historians of slavery and race, especially slave law?
FINKELMAN: Slave law is full or horrors and surprises. We read about relationships that we don’t expect. The Mississippi Case of Mitchell v. Wells involved a master who legally manumitted his slave mistress and their daughter, and then left his property to his daughter who had been his slave at birth. She returned to Mississippi to nurse him through his fatal disease (probably tuberculosis). In the end she does not get her inheritance. The case gives us an insight into what appears to be a loving relationship between the master and both his mistress (he thought of her as a common-law wife) and his daughter and the love returned by the daughter. On the other hand, we also see cases where masters sell off their own children and brutally murder their own slaves. We get at slave law from four major sources: statutes (passed by the federal government, the states, or sometimes cities and towns); printed reported cases from state and federal courts; and archival materials found in the case files, docket books, wills, records of auctions and foreclosures; newspaper accounts of trials; and pamphlets published by litigants, attorneys, antislavery societies (or occasionally proslavery groups), newspapers, and entrepreneurs. These records all tell different stores. The statues and published cases are the most accessible, and thanks to the HeinOnline project (which I discuss below) are now accessible completely for free on the internet. These are enormously rich sources. I suppose the greatest challenge is the sheer volume of them. We have many thousands of reported cases ranging in size from a couple of pages, to the nearly 300 pages of the Dred Scott decision. Archival materials are scattered, sometimes are to find, and often don’t provide the information we want. But, they can be enormously helpful. Here is one example from my own work. I have written a good deal on the first fugitive slave case to go to the Supreme Court, Prigg v. Pennsylvania (1842). The case involved a black woman named Margaret Morgan who was seized in Pennsylvania and dragged to Maryland, where she was eventually sold and disappeared from the historical record. Morgan claimed to be free and under Maryland law and Pennsylvania law she had a very strong argument that she was not in fact a slave. I had always wondered if she was afforded the opportunity to prove her freedom. In the early 1990s I found the docket book in the Harford County (Maryland) Historical Society, which showed that she was given a trial on this issue, but she lost. The record of this short hearing was never published, and only by some good luck was I able to locate it. So the challenge in many cases is to find the documentary history—and then the social history—to fill in the the gaps in the printed records. Newspapers and pamphlets about famous or notorious cases also help.
GRAY: As a graduate student who were your advisors? And how did you get into legal history at the University of Chicago?
FINKELMAN: I did my MA under John Hope Franklin, and then quite by accident moved into legal history for my Ph.D, where my adviser was Stanley N. Katz. Stan was teaching a course in the law school on the law of slavery. At the time I was planning to write a dissertation in urban history. But I took his seminar because it looked interesting. I was the only Ph.D. student in the class, so I felt a bit uncertain when I started to read legal cases, but I quickly found that except for some technical jargon and issues of legal procedure, they were pretty easy to understand. The material was fascinating, and the sources were incredibly rich. So, I became a legal historian. I sat in on a bunch of law school classes, just observing and reading and learning the vocabulary. My mentors taught by example—they wrote, they published, they were engaged with research, scholarship and most of all ideas. They were both the living embodiment of how the “life of the mind” is really a life that intersects with the larger society at a number of levels. After my Ph.D. I was a Fellow in Law and Humanities at Harvard Law School, where I formally took a number of law school classes. Legal history takes you to all areas of U.S. history. Moreover, if you are in any other area you sooner or later will run into some aspect of the law. The law is a great way of getting at both how our society thinks of itself, but also how it acts and behaves. We see the law as a vehicle for social change and also as a giant stop sign inhibiting change. In the end, almost everything that matters in the U.S. ends up in courts or legislatures or both. Thus legal history is very useful for people who are not in fact “legal historians.” I also had a political scientist on my committee, Herbert Storing. We disagreed about a lot, but, that is another way to learn and stretch your brain.
GRAY: I know that recently you have been working with HeinOnline for a new database, Slavery In America and the World: History, Culture, and Law. How did that come about, and what is its significance? Heinonline has made this a free access database. That is very generous. I did notice that there is however, a donation suggestion on the registration form. Would you comment on that please?
FINKELMAN: I have been working with the William S. Hein, Co. for the past 3 years to develop this data base site. So far we have put up every known state and federal statute on slavery and race before 1880; virtually every reported case in the U.S. and the UK, and more than 1,000 pamphlets and books. Every month we are adding more material. I hope everyone who reads this interview will sign up for the free access to the data base. All of the material in in a PDF format that is word searchable and can be downloaded. It is possible to block, cut, and paste from all these documents. Thus, if you wanted to quote from, say Chief Justice Taney’s opinion in Dred Scott, you would be able to block and copy the material and just paste it into your document. The technology is amazing. Hein is a for-profit company and most of its customers are law libraries, law firms, major university and public libraries, and governments. Hein has more than 140 million of documents, reports, books, cases, etc. in its databases from the U.S. and around the world. Its all in PDF form, and it is available by subscription. But, when we went live with the slavery database the president of the company, Kevin Marmion, decided that this material ought to be free to anyone who wants to use it. That means many smaller libraries, community college libraries, many HBCUs, even high schools, that cannot afford HeinOnline’s services, can have access to this collection. Students, independent scholars, and professors can get it as well. At the same time HeinOnline asked its traditional customers to donate funds that they would have otherwise spend on the subscribing to the slavery materials. Those donations go to a number of non-profits, like the United Negro College Fund and the NAACP. No one is obligated to donate. At a time when racial issues are so deeply troubling, Mr. Marmion and the CEO of Hein, William S. Hein, simply felt there was a moral and civic obligation to share this product with anyone, anywhere. Needless to say, it is an unprecedented action and I am enormously proud to be part of it.
GRAY: In many of your profiles, your writing includes more than 40 books and hundreds of scholarly articles. Other than writing, you also travel to speak in a variety of venues, and direct an annual U. S. Capital Historical Society conference. In addition you participate in NEH summer teacher institutes. And I may have missed some other activities. Is there one aspect of being a historian in any of these capacities that you enjoy more than another?
FINKELMAN: I love writing, research, speaking and teaching. The travel can be tiring but is fun and I truly learn from speaking around the U.S. and in other countries. I just came back from a conference on Native Americans in Italy. I spoke the early Indian Law cases of John Marshall. This is just one more example of how legal history is everywhere. The best part of my work is helping other scholars and students. It sounds corny and hackneyed, but teaching, research, and writing all merge together. As a legal historian I am also able to participate in public policy debates. Thus, I was an expert witness in the successful law suit to force the removal of the 5,500 pound Ten Commandments monument that Chief Justice Roy Moore put up in the rotunda of the Alabama Supreme Court building. I also got to testify in the lawsuit who owned Barry Bonds’ 73rd home run ball because I had written what at the time was the only scholarly article on the history of why fans get to keep balls hit into the stands. It was a fun article that merged baseball history, legal history, and traditional property law. It was obviously great fun. Similarly, the Supreme Court has cited me in four cases, and it is gratifying to feel that my historical scholarship can help the nation solve modern problems. Finally, there is nothing as exciting as discovering new information, or seeing old information in a new way, and then sharing it.
GRAY: When you visited Morgan State University, and spoke to the graduate students you brought a copy of your new manuscript. What is that work about, and when will it be published?
FINKELMAN: I had literally sent the manuscript of my next book off the Harvard University Press the day I flew to Baltimore. The book will be titled Supreme Injustice: Slavery in the Nation’s Highest Court. I have looked at the way these three Supreme Court justices dealt with slavery in their personal lives and on the bench. Some of the findings are not all that surprising. Chief Justice Roger B. Taney was obsessively pro-slavery for most of his adult life. Many scholars (usually law professors and political scientists) have said Dred Scott was a mistake or an aberration. But most of what he said about free blacks in 1857 mirrored things he had said when he was attorney general under Jackson in the early 1830s. He had been opposed to rights for free blacks since then. On the other hand, I have also discovered incredible new material on John Marshall. All his biographers say he owned only a dozen slaves in his home in Richmond (note the “only”—that was actually a huge number of for an urban slaveowner), and that he heard almost no cases dealing with slavery. Both are simply untrue. Actually Marshall owned at least 170 slaves and maybe more. He bought (and sometimes sold) slaves most of his adult life. And he had a number of plantations scattered around Virginia.
GRAY: Lastly, what is next for you?
FINKELMAN: I have a book on the Oberlin-Wellington Fugitive Slave Case I owe Ohio University Press and a history of the Supreme Court under Chief Justice Taney for University of South Carolina Press. After that, I will turn to a book I am tentatively titling “A Legal History of American Jews” which I will co-author with the historian of American Judaism, Lance Sussman. It will be about the shaping of religious liberty in the United States through the lens of one important, but small, religious minority, and will run from 17th century New Netherland to the present. Then it will be back to understanding the fugitive slave laws of 1793 and 1850. I am sure in the interim other things will come up.
NB: You can reach Professor Finkelman at paul.finkelman[at]yahoo[dot].com. Also, to register for free access to HeinOnline’s Slavery in America and the World: History, Culture, & Law database, visit: http://home.heinonline.org/access-registration.