As we noted recently, our spring William and Mary Law course is taking a look at the role of property rights in the debates about the ratification of the U.S. Constitution and the political atmosphere from the founding to the Civil War. Being able to studying these subject in Williamsburg is even better, because we're right in the center of where some of the most important historical events occurred.
But wait, you say, the ratification debates took place in Philadelphia, not peninsular Virginia, so what gives? Our view is that the unsettled question of whether the U.S. Constitution is a pro- or anti- slavery document was not resolved in law until the Civil War, and that the factual debate continues to this day. And the critical events that set the ball in motion took place right down the road from the law school.
First, Point Comfort, the location where, in 1619, the first Africans touched ground in the New World. Second, the spot at Fort Monroe where two-plus centuries later (and merely yards away, by happenstance), the long road to freedom for the enslaved arguably kicked into higher gear. Fort Monroe, you see, is built on Point Comfort, and is the first place where, as far as we can tell, the legal theory of enslaved persons as "contraband property" was created or applied in the early days of the Civil War. Students of history will tell you that there are myriad political, social, and legal reasons why those who escaped bondage and made their way to Union lines were not deemed emancipated, but were stuck in a legal limbo of being neither enslaved or fully free. A half-measure, perhaps, but surely a start on the road to the principle that "not a man shall be a slave."
Was it coincidence that General Butler, commander of Fort Monroe in those critical days and the implementer if not the creator of the contraband theory, was also a lawyer in civilian life? Was it also coincidence that after the war, Congressman Butler was the author of the first version of the Ku Klux Klan Act, the statute we now know as 42 U.S.C. § 1983? (Read his bio and see if you don't agree that this fellow does seem to pop up at some of the most important times and places during those days.)
For more on the subject try these informative sources:
- The Forgotten: The Contraband of America and the Road to Freedom (National Trust for Historic Preservation)
- Slave, Contraband, Refugee: The Complicated Story of the End of Slavery in the United States (Dig: A History Podcast)
- How Slavery Really Ended in America (New York Times Magazine)
So last week our class took a short "field trip" (remember those from high school?) to Point Comfort and Fort Monroe. What did being on-site add to our studies? Any dirt lawyer will tell you that it is critical to see the actual places involved in your cases, and we think history is no different. There's just something about breathing the air at the very places where these important events occurred.
We created a short video chronicling our class visit that touches on some of the legal issues. (We had to re-record the audio because the original had too much background wind, so forgive us if we sound a bit muffled.) We also held short "dramatic readings" of the book we're studying, Sean Wilentz's "No Property in Man - Slavery and Antislavery at the Nation's Founding."
If you are ever driving through Hampton on Interstate 64, stop by for a visit. Well worth it.
