to the slave system. professor finkelman has taught classes and written about the slave trade for many years. this interview takes place at the organization of american historians meeting in milwaukee. it's about 20 minutes. >> american history tv is at the annual meeting of the organization of american historians in milwaukee. and joining us is paul finkelman, who is a professor of law and public policy at the albany law school. thanks for being here. >> oh, it's a delight to be with c-span. >> and you are here because you're participating in a panel that's called new perspectives on the 19th century slave trade. >> right. >> what did you talk about in your discussion today? >> well, the panel talked about two pieces of the slave trade. one was the kidnapping of black children from mostly philadelphia, but also other places where they were free. and this is something that historians have known a lot about, but there has not been very much research. and so two of the panelists were

able to discuss research that is ongoing about kidnapping gangs. and this is really kind of an early version of trafficking people because you have free people who are grabbed off the streets, thrown into ships, taken to delaware, maryland, and from there, transported further south. >> because delaware or maryland would have allowed the slave trade? >> well, they wouldn't. what's interesting, it's illegal everywhere. kidnapping free people is illegal, even in mississippi it's illegal to kidnap a free person. the difference is that pennsylvania's in the process of ending slavery. most of the blacks in pennsylvania by 1810 are free. children who are on the streets in pennsylvania are free, but in maryland and delaware slavery is an ongoing institution and so

the presumption of the law changes. once you get into a slave state the presumption is that if you're african-american you are a slave. and so if someone is taking a black child through maryland, nobody is going to intervene and say why are you carting this black child off. if the black child is chained, no one will say why are you carting this black child off. they will assume the child was a slave. whereas, if you're doing it in pennsylvania, you would be stopped by all kinds of people saying why your kidnapping this child? >> who is behind these gangs? >> people who are professional criminals. most interesting one is a woman named patty canon. she has a gang of kidnappers including some mixed race people, that is people who are both of african and european descent who help entice children on the theory that children will be more comfortable with someone who appears african-american. the more interesting piece in

some ways -- i shouldn't say more interesting because they are both interest, that tells us something about human trafficking which has been going on for a very long time and also suggests that trafficking in children, which is an international problem today, is nothing new. and maybe it's easier to traffic children because they are less able to assert their rights, they are less able to escape, they are less able to fight back. so that's one piece of it. the other piece of the panel was about the interstate and the intrastate renting of slaves. and this is really fascinating. because it turns out that significant numbers of slaves at sometime in their life are rented out. the most common time when you're rented out would be when your master dies. the worst day of a slave's life is the death of the master because when the master dies, it means to master's estate is going to be dispersed among the heirs and that means slave families will be broken up, slave communities will be broken

up, slaves will be separated from people they always known to the people they lived with. the most famous example, thomas jefferson. >> who handled the renting? >> someone dies. they have a will. the deceased person has a will. the will names an executor. and the first thing the executor does is to pay off the debts of the estate and to disperse the property. that can take many years. often the way to disperse the property is to sell slaves, auction them off to various parties. again, the most famous example probably in american history is the settling of thomas jefferson's estate where close to 200 slaves are auctioned off in one day. four or five of jefferson's slaves get free. one of them, his blacksmith is freed and jefferson says in his will that the blacksmith can be

not only free, but live on monticello and have his blacksmith tools and live in the cabin with his family. only thing is, jefferson forgot to free his family. so on the day he got free, he saw his family get auctioned off to different buyers. that's the end point of settling the estate. but the middle point from the death of the master until the settling of the estate, the executor has to do something with slaves. and often, the easiest thing to do is rent them out to other people so that a man dies leaving 15 slaves, his widow will eventually get a use of some of these slaves, his children will get the slaves. while they are sorting this out, the executor will come in, i'll rent the slaves out and have a steady cash flow. so what we find is almost every american slave or a vast majority of them, at some point

in their life, are rented out to someone else. now here's where it gets interesting. we're in the middle of the sesquicentennial of the civil war. one of the great questions that is often asked is why do so many nonslave holding southern white men fight and die to preserve slavery? slavery is the cause of the war. and if people don't believe me, they can go look at the declaration of the causes of secession by any one of the southern states, south carolina, georgia, texas, they all say the same thing we're leaving the union to protect slavery. why does the rank-and-file nonslave holders. people ask that. we have an answer. many nonslave holders are in fact slave renters. so they are involved in the slave economy. they are renting slaves. they are using slavery. slavery is important to their livelihood even if they don't yet own slaves. one kind of modern example would be why do people who don't own

homes believe in the private ownership of homes? because they are renting a home now and someday they hope to buy a home. >> how big was the slave trade prior to the civil war? >> well, there's two slave trades. first is the african slave trade that brings people to africa. that ends in 1808 legally. that is, starting january 1, 1808, it is illegal to bring a slave into the united states. that slave trade probably brought 400,000 people to what becomes the united states from the 1650s until 1808. by the way, that's a very small piece of the larger atlantic african slave trade. millions went to brazil. millions went to the caribbean. far fewer went to what becomes the united states. with the closing of the african slave trade, you have a trickle of illegal slaving, but it's

really a trickle because it's -- the penalties are huge and the complexities of the illegal trade really diminish it greatly. there's much more of an illegal slave trade to cuba, where spanish authorities simply turn a blind eye. once the african trade ends, the domestic trade picks up dramatically. millions of american slaves will move west. some of them will be brought by their masters. that is, somebody in virginia is moving to alabama. he takes his slaves with him. often, though, somebody in virginia will simply say i have excess slaves, i will sell those slaves to a slave trader. the slave trader will then transport the slaves to alabama, to mississippi, to texas, to arkansas, to louisiana. the heart of the southwestern cotton boom. >> and the children of those slaves, are they themselves --

become slaves as children born into slavery. >> right. >> so the numbers increase. >> the numbers increase. and america has a very large slave population that reproduces rather rapidly. this is due to a combination of many things, one of which is simply climate. the american climate is healthier, say, than brazil or the caribbean. the food supply is better. the work, while horrendous, is not lethal the way sugar planting is. so the american slave population grows from a couple of million after the revolution to -- actually from about a million after the revolution to 4 million by the civil war. >> you teach a course at albany law school called "slavery and the law." >> right. >> tell us about that course. >> well, people often ask why do you teach slavery and the law? it's not on the bar exam. and that, of course, is true.

law" for a couple reasons. but i teach "slavery and the law" for a couple reasons. first, because much of american constitutional law actually is still based on precedents that were created by slavery. the oddest and most obvious example is the electoral college and the constitution. why do we have an electoral college? why don't we elect the president directly? at the constitutional convention, they discussed this. james madison says, and i'm quoting from him, "the fittest thing," that is, the best thing, "would be for the people to directly elect the president. i.e. popular vote. to use the most obvious example, al gore beats george bush because he has more votes. but madison then says, there are two problems with that. the first is the difference in the franchise, meaning that in south carolina, only adult white men who own a certain amount of property can vote, whereas, in massachusetts all adult men, black, indian, white can vote, and in new jersey, even women can vote. so what madison is saying is that we would have a difference

in the franchise as to who could vote and that would skew the election to favor some states over others. but that could have been dealt with. you know? the constitution could have said all adult males or all adult white men. they obviously weren't going to enfranchise women. could vote in the president's election. a lot of ways to do it. but then madison says the most important reason, our slaves won't count. now, he doesn't mean the slaves should vote. what he means is if you have a presidential election that's a popular vote, there won't be slaves voting. so virginia, which is the largest state population wise, becomes the third largest state if you don't count the slaves. so how do you get around it with the electoral college, which is based on congressional representation, which is based on counting slaves for three-fifths of the congressional representation. so the result is the three-fifths clause, which counts 3 slaves out of every

5 toward congressional representation, gives the south extra representatives in congress and gives the south extra muscle in the electoral college. and that's how we get the catastrophe in bush v. gore. so there are real day-to-day consequences from american law that developed out of slavery. there are a bunch of other doctrines. something called the dormant commerce clause begins with slavery. something called domestic police powers begin with slavery. so i teach it for that reason. but the other reason to teach it is because the law's a powerful tool. law is used to create societies, to help make society better, but law can also be used to make society much worse. and i think it's an important thing for a lawyer to understand the power of the law, to do evil as well as to do good. we learn from our mistakes. and it's kind of shocking to see well-educated, intelligent judges making decisions that, by

our standards, are absolutely horrible because those decisions are supporting slavery. the most famous example, the dred scott decision, where chief justice tawny says blacks have no rights, that the white man need respect. he was probably right constitutionally. that's what's shocking. but students need to know that. >> i read that the course also looks at british law. how did the british resolve the slavery issue? when did they end slavery? and how did they end it differently from the united states? >> britain -- >> not the civil war. >> right. well, except for the civil war. that's a pretty big exception. but we'll get to that in a second. britain deals with slavery and the law in sort of three phases. the first phase is a decision by the chief justice of the court of king's bench, lord mansfield, in 1772 known as the somerset case. somerset was a slave in virginia brought to england by his master, who was a colonial

bureaucrat. worked for a while in virginia, came back to england, brought his slave with him. once somerset gets to london, he says i don't want to be a slave anymore. lots of free blacks in london. he runs away. his master, james stewart, grabs somerset and brings him back. charles stewart. his master charles stewart grabs james somerset, brings him back, and has him chained in a ship to send him to barbados to be sold. abolitionists get rid of habeas corpus, bring the case before lord mansfield, and lord mansfield says that slavery cannot exist by common law, it can only exist by statutory or what he calls positive law. and since there's no statute creating slavery in england, it is against the law to hold someone as a slave against his will. that's 1772. many scholars, and i'm one of them, believe that one of the reasons for the american

revolution was that southerners did not want to be tied to an england where there was a legal precedent that said slavery couldn't exist except by positive law and where if they brought their slaves to england, they could lose their slaves. somerset scares southern masters because it's really saying slavery is immoral. it's legal in all the american colonies, but not in the mother country. so that's the first step. second step is in 1807, england bans the african slave trade to all of its colonies. a few months later on january 1st, 1808, we do the same thing. that ends new slaves coming into the caribbean. but it doesn't end slavery in the caribbean. then in the 1830s, england passes a law to end all slavery in the caribbean, paying masters a small sum for every slave, having some apprenticeship

programs to ease the transition from slavery to freedom, and by 1837, there's no slavery in the british western hemisphere. >> do you have any idea the numbers that were in the caribbean under the british empire? >> you know, this is something where i wish you'd asked me before i went on camera. i would have looked it up. but it's probably 3 or 4 million slaves. >> so many more than originally in the u.s.? >> that's right, that's right. now, here's the difference. in england, the basis of the empire is england. it's great britain. it's the united kingdom. it's not barbados or jamaica. and so what you really have is parliament telling barbados and jamaican masters you're getting rid of your slaves, we're buying them from you, you have no choice. so england, in a sense, is doing something to someone else within the empire. they're ending slavery.

you can, of course, make the argument if you're an american slave, you're better off in the british empire than the american republic because you'll be free a lot sooner. >> you're a law professor here at a conference of historians and history professors and teachers. >> right. but i am a ph.d. historian. >> what is the perspective of the law, particularly on slavery, that you would impart to people teaching history that they're not teaching now? >> well, the first thing i would do, and this came up in my panel as well, is that when you look at things like renting slaves, when you look at things like kidnapping, you have to understand the full legal implications of slavery. slavery is a pervasive system, and it pervades the legal system. i'll give you one example. one of the panelists noted that when we're dealing with kidnapped black children, the only witnesses often would have been free blacks. but the panelist then goes on to

say, but the southern states, maryland and delaware, would not relax their rules to allow blacks to testify in these cases. and the point is that throughout the south, nowhere can a black testify against a white. so you can't relax the rule in one instance because then the whole system comes tumbling down. so despite the fact that it's a crime to kidnap blacks in delaware and maryland, you can't let blacks testify, because if you let blacks testify against whites, then the whole racial basis of slavery begins to crumble. in law talk, law professors talk about the camel's nose under the tent. the idea that if the camel sticks his nose under the tent, next thing you know, you're going to have a whole camel in your tent. or we talk about the slippery slope, if you get on the slippery slope, you're going to allow to the bottom. the big slippery slope would be if you allowed a black to testify against a white ever, then you lose the whole game. so part of the importance of understanding slavery is to

understand that it has a dramatic legal superstructure which keeps it going. people talk about modern slavery or the modern slave trade. a huge difference between husk traff husk trafficking today and human trafficking of slaves in the 19th century. the biggest difference it was legal then and it is illegal now. today, if somebody is trafficked into the united states, all that person has to do is go to a law enforcement officer and say i'm being held against my will, help me. many of em trafficked end up in the sex business.

no future sex worker business. if a woman is forced to work against her will to do things, all she needs to do is walk out of where she is and tell somebody swho a law enforcement person and unless that by the law. that's the difference between a fugitive slave today and a trafficked person. the fugitive slaves then and the trafficked person today. now i'm not saying by the way, this is always easy. often a trafficked person is afraid to talk to law enforcement officers. they're afraid they'll be sent back to their home country. there are lots of reasons why they don't do that, but the legal structure is very, very important. when we fight modern trafficking, we can't keep using the slavery analogy because it leads us down the wrong path. our legal toolbox to fight trafficking is enormous. where as the legal toolbox to fight slavery was very small. >> paul is a professor of law, public policy at albany law school. thanks for the conversation. >> thank you very much. >> next, an archival film about the berlin wall created in 1962

about a year after the berlin wall was constructed. it's ten minutes. ♪ >> we have lived in the shadow of the wall for more than a year. it cuts through the heart of berlin. we have learned to live with it.

we refuse to think that it will always be this way. in the beginning, we waved across the wall to our families in east berlin. it didn't matter who watched us. but later, the communist policemen came and stopped our families from waving. >> my mother lives over there.

they will move her away if she dares to wave. it's forbidden. i speak to my children in east berlin with hand signals, making certain the guards are not watching. i don't want them to harm my family. we have become good with our signals. at dusk, the communists have a hard time tracking us down. but we take chances, especially on nights when an escape is planned. in the beginning, many people escaped in broad daylight by

jumping out of windows facing the western sector of the city. our firemen were there to help. we remember the woman being held by communist guards to prevent her from joining her family. they even threw tear gas at those who were below, ready to catch her. that's when they decided to extend the wall and cut access to the buildings facing west berlin.

they sealed every window. many brick layers came over to our side of the wall rather than do that kind of job. they strung barbed wire on the roofs to close off another way of escape. many homes along their side of the wall were razed.

>> they blinded us with reflecting mirrors. they threw tear gas. they tried everything to keep us away. we threw the tear gas grenades back at them. they laid mine fields in the countryside. they increased their patrols. they planted new watch towers. but we watched them, too. and soon learned their weak

spots. entire families escaped, women and babies. we were waiting for them. 12,000 people escaped in the first year of the wall. our loud speakers told the communist guards that to shoot a refugee was murder, that they would be held accountable, that they could not claim orders from higher up. murder is always murder.

on a friday afternoon, they shot an 18-year-old boy as he was trying to scale the wall into west berlin. they let him bleed to death on their side of the wall. then they took his lifeless body and took him away. his name was peter. he was an apprentice bricklayer. we mourned him on our side of the wall. a few yards from where he fell. peter was one of 50 people who

died trying to escape during the first year of the wall. we mourn them all. we honor their names. they will be remembered as long as we live. at 12:00 on august 13th, on the anniversary of the wall, west berlin paused for three minutes of silence. >> we still wave to our families in east berlin.