Sorry again for the late thread - I need more time to keep up with this list - its so
prolific! (who knows when I'll get to the ninth circuit recall posts )
A few points:
1) The Colonization Society was also heavily involved in the repatriation of slaves to
Africa who had been forfeited under the federal laws prohibiting the international
slave trade.
For example, they had a role in the Antelope case, and in the infamous Madrazo
litigation, a series of cases involving the disposition of slaves from a ship which
had been seized as illegally importing slaves, and which ultimately raised 11th
amendment issues. The federal act had initially left to states the decision of how to
dispose of slaves forfeited as illegally imported, and the Georgia statutes provided
for their delivery to the American Colonization Society for disposition. The Georgia
government's attempt to deliver the slaves (which had already been sold at auction) to
the Colonization Society triggered a lenghthy legal battle, and some initial 11th
amendment precedent. Ultimately, when the federal anti-importation statute was amended
in 1819, the American Colonization Society strongly (and successfully) lobbied for a
provision requiring the repatriation of forfeited illegally imported slaves to Africa.
See, John J. Gibbons, The Eleventh Amendment and !
State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, text at note
393, et seq. ( 1983)(discussing Madrazo cases).
2) As to Marshall manumitting his slaves, he only freed one in his will, his long
time personal slave. However, some have argued that the conditions on manumission were
such that it was very unlikely that the gentleman would have taken advantage of the
generosity. See Frances Howell Rudko, Pause at the Rubicon, John Marshall and
Emancipation, Reparations in the Early National Period 35 J. Marshall L. Rev. 75
(2001). Marshall's will provided that the slave (who had been given to Marshall by his
father 52 yeares earlier) would receive 100 dollars if he went to liberia and $50 if
he remained in the United States, and if it was "impracticable" for him to leave that
he could reside with one of Marshall's children (which I think Robin did - after all,
how far are you going to get as a free elderly ex-slave on $50. (even in the 1830s))
3) As to Marshall's attitude generally towards manumission, I think his main concern
was not so much whether the manumission was governmental or nongovernmental, but
whether the freed slaves would remain the United States. For example, as stated above.
the American Colonization Society supported the governmental manumission of slaves
forfeited in violation of antiimportation statutes, provided they were shipped back to
africa. The Rudko article above notes, that Marshall was in support of federal funding
for repatriation of slaves to Africa.
In contrast, Marshall, when faced with the question, (including, among others, the
mamie queen, and scott v. ben cases which Paul cites), narrowly construed, indeed
essentially eliminated, legal rights to manumission which American slaves did have 1)
under state antiimportation statutes, essentially reading these statutes as
unreasonably hypertechnical forfeitures of the slaveowners' property interests), and
2) in the mamie queen case, interpreting federal hearsay law so narrowly as to exclude
the only evidence (family oral history) that slaves generally had to prove the free
status of their matrilineal ancestors. (slave status descended through the maternal
line).
As a contrast to Marshall's parched interpretation of legal rights to manumission, see
e.g., the Taney (yes Taney) court opinion of Rhodes v. Bell, 43 US 397 (1844) in which
the Taney court (opinion McLean) unanimously freed a slave, holding that manumission
provisions in Virginia and Maryland antiimportation laws were applicable in the
DIstrict of Columbia, narrowly construing an apparently contrary Congessional statute
in the process.
yb
*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:) [EMAIL PROTECTED]
*****************************************************
> ----------
> From: Paul Finkelman[SMTP:[EMAIL PROTECTED]
> Reply To: Discussion list for con law professors
> Sent: Wednesday, September 10, 2003 6:30 PM
> To: [EMAIL PROTECTED]
> Subject: Re: "Non-Governmental Emancipation of Slaves" Say what?
>
> Most of the colonies prohibited manumission, so the default, non-action, was to not
> allow private manumssion. My 3rd responses -- allowing private manumission -- was
> probably what Marshall thouight should happen.
>
> To your final question, the answer is probably no! No, he did not advocate anything
> beyond private acts of good will. Louise's comment is correct that thousands of
> masters in the South, between 1872 and 1861 free their own slaves, but these were
> drops in the bucket and had no affect on the institution and little on the growth of
> the slave population or the spread of slavery.
>
> Paul
>
> --
> Paul Finkelman
> Chapman Distinguished Professor of Law
> University of Tulsa College of Law
> 3120 East 4th Place
> Tulsa, OK 74104-3189
>
> 918-631-3706 (office)
> 918-631-2194 (fax)
>
> [EMAIL PROTECTED]
>
>
>
> Robert Justin Lipkin wrote:
>
>
> I find Paul's explanation, as well as Keith's (and I'm sure I'm leaving
> out others--for which I'm sorry) to be very helpful. However, one problem (for me)
> lingers. If John Marshall believed slavery should be abolished but not by
> governmental action, what did he mean by this and how did he think it would operate?
> Paul's four repossess to slavery all seem to require government action of one kind
> or another. Abolition, outright or gradual, allowing private manumission, or
> prohibiting all in-state manumissions, all require law. If so, Marshall could not,
> if he was committed to non-governmental emancipation, embrace any of these.
> Moreover, what non-governmental emancipation is even conceivable? More importantly,
> at least for my present purposes, did Marshall (or others) advocate some
> intelligible form of non-governmental action for freeing slaves, other than the good
> will of slave owners?
>
> Bobby Lipkin
> Widener University School of Law
> Delaware
>
>
>
>
>
