William Gaston & Slavery: A Conversation between Professor John Mikhail and Professor Adam Rothman

William Gaston & Slavery: A Conversation between Professor John Mikhail and Professor Adam Rothman

Gaston, William, 1778-1844
Slavery--North Carolina--History--19th century

Audio recording and transcript of a conversation between Georgetown Law Center's Professor John Mikhail and Georgetown University historian Professor Adam Rothman about Mikhail's research into William Gaston's slaveholding and judicial opinions concerning slavery.

Adam Rothman, John Mikhail

Georgetown Slavery Archive

2022-11-04

Adam Rothman, John Mikhail, Cooper Wingert

Adam Rothman and John Mikhail

MP3

English

Audio recording

GSA455

Adam Rothman
Hello. My name is Adam Rothman. I teach history at Georgetown University, and I'm the curator of the Georgetown Slavery Archive website. Today we're going to chat about one of the key figures in Georgetown's history, a man named William Gaston. William Gaston was Georgetown's first student in the early 1790s. Later, as a member of Congress, Gaston secured a charter for the school from the Federal Government. That charter is read to this very day at every Georgetown commencement. Our school's main auditorium is named after William Gaston. It's a richly ornamented space with many historical details adorning the walls. But what you won't find there is any mention of Gaston's entanglements with slavery. That’s our subject for today.

Joining me is Professor John Mikhail, from the Georgetown University Law Center. John has done a deep dive into this issue, and has recently shared his findings with the Georgetown community. Just a word about Professor Mikhail. He's the Carroll Professor of Jurisprudence at at the Georgetown University Law Center, where he's taught since 2004. He is the author of a book called Elements of Moral Cognition, and many other articles and chapters, and essays, and reviews and blog posts, a very prolific scholar. And he teaches and writes on a variety of topics, including constitutional law and legal history. So he's a great person for this conversation.

John, thank you for joining me today, and thank you so much for the research you've done on Gaston.


John Mikhail
Thanks, Adam. It's a pleasure to be here.


Adam Rothman
Great. So let's let this dive right into it can. Let's just start with the question of what got you started on this research? What piqued your curiosity about Gaston?


John Mikhail
Sure! Well, I had been aware of Gaston as an important figure in the history of American law. He was a justice on the North Carolina Supreme Court. He was a member of Congress as you mentioned. But I didn't know a lot about him or his personal biography, and what really piqued my interest was the work that you and the other members of the working group did. And, I think it was 2016, and in writing the report that you did about Georgetown's ties to slavery.

The main topic of that is, as you well know, was the sale of the 272 enslaved individuals by Jesuit leaders in 1838.

But Gaston was discussed briefly in that report and when I read the report it did pique my interest in in learning more about him and in particular in his connections with slavery.


Adam Rothman
But yeah, no. Going back to the working group, we were focused on the 1838 sale, and the architects of that sale, Thomas Mulledy and William McSherry.

But you know we also understood, I think, that there are many other other places on campus and people in the school's history that have connections to slavery, and I think that we wanted to get the ball rolling on people's understanding of this history, and you know we by no means did a kind of exhaustive dive into this. So it's great to see, you know colleagues like you taking an interest, pursuing angles that we didn't fully pursue, or may even have gotten wrong in 2015-2016. So I think you know I really thank you for the the work that you did.

So Gaston is a well known figure in American legal history. He was an eminent jurist in North Carolina, in the era of slavery, and he's a kind of a complicated figure, because well, let's let's start with this—he has a reputation of being at least moderately anti-slavery. Is that right? I mean is, that is his reputation?


John Mikhail
That's correct. And this is what, as you say, it makes Gaston quite interesting. He's a complicated figure, but in the conventional understanding of American law and the law of slavery in the antebellum South, Gaston is often depicted as someone who is who was a an anti-slavery judge and jurist, and the reason, well, there are many reasons. He gave a famous speech for example, an address at the University of North Carolina in 1832, in which he expressly called for the end of slavery. And he said, you know some fairly pointed things about slavery, and that's a well known speech, you know, to to scholars of the period and of Gaston, and he also wrote opinions on the North Carolina Supreme Court, which were different in some respects from the from many of the other slavery cases, and in some respects they did tend to push the law of North Carolina in a direction that was, I think, intended to mitigate the harshness of slavery, in some cases. And then also he's well known for defending the rights of free blacks in North Carolina. So he, both, as a judge, wrote opinions that did that to some extent, and we can talk about the limitations of what he did later on. But also outside the courtroom, so you know, Gaston was one of a small handful of the most prominent political and legal figures in the State for several decades, and he attended and played a significant role in a constitutional convention in the 1830s in North Carolina, and at that convention he fought a value, but losing battle on behalf of free black citizens to preserve the franchise, to preserve the right to vote, which until that time had been exercised by free African Americans in North Carolina. And so when you put things like, you know those kinds of events together, there's a basis, a reason why historians have generally looked favorably on Gaston when it comes to questions like the law of slavery, and the rights of free blacks.


Adam Rothman
Yeah, thanks for that backdrop. I recently read that 1832 speech that Gaston gave, and he does have a section in it where he's very critical of the impact of slavery on society and culture in North Carolina. He says that slavery is fatal to economy and providence. But he doesn't go into, he proposes no solution. He doesn't actually advocate for emancipation or abolition. He says, this is not the time to discuss those things, which is an interesting limit to his ability to criticize slavery in public. But it is interesting that even though he condemned slavery in one 1832, he's then that following year named to the North Carolina Supreme Court. So perhaps that shows some of the limited space for dissent in a place like North Carolina.

I want to ask you to unpack a couple of the key cases that Gaston ruled in. But before we do that, let's talk a little bit more about Gaston himself as a slave owner, because that is quite fundamental, I think, to understanding his position in North Carolina society, and it's something that you won't find in any of the public memorials about Gaston on campus. So you uncovered Gaston's estate inventory. So when Gaston dies, his estate is tallied up by the government, and there's a record of it. Can you tell us what you found in that inventory?


John Mikhail
Sure. So the estate inventory is a really terrific piece of documentary evidence to fill in the picture of Gaston’s slaveholding. There's a lot of scholarship that has inaccurate statements about the number of enslaved people that Gaston held. The estate inventory lists by name what appears to be 163 individuals and it organizes the list by family unit, what appears to be family unit, and in some cases it describes the family relations, and it states the ages of each enslaved person. And so that's really, you know, good concrete evidence of the number of individuals who Gaston enslaved at the end of his life. And it's a much larger figure than many people had assumed, you know, was the number of people Gaston enslaved. And what I did to kind of reinforce that finding is start to look at Gaston's other records, of Gaston’s slaveholding. So in particular federal census records, every ten years by law the United States conducts a census, and in the antebellum period the information that was gathered included the number of slaves that each individual legally owned. And there are also local and county and state records, tax records, and other records, and putting that information, together with the estate Inventory, produces a pretty clear picture of Gaston’s slaveholding. And he was one of the largest slaveholders in North Carolina in the antebellum period. So there are studies of those census records that give us a kind of overview of the entire United States. A very valuable set of information, you know, on all kinds of questions, not just slaveholding, but the studies allow us to make generalizations about individuals. And Gaston, according to one study that the census bureau did in the early twentieth century, but the study was of the antebellum period, Gaston was one of the, in the top one percent of all North Carolina slaveholders. So that's a very significant finding. And his slaveholding grew over the course of his lifetime, in a way that I think was probably typical of wealthy Southerners, who characteristically stored and grew their wealth in the form of enslaved human beings. I mean, that is a piece of the history of slavery that we ought to focus intently on, which is that it was a a system of domination and control. It was, of course, horribly oppressive and unjust. It was a labor system, but it was also a form of wealth, and understanding that it's almost always the case that extremely wealthy prominent individuals in Southern societies did in fact, extensively enslave people is just kind of a a kind of a brute fact about the society that we often, you know, I think it's sometimes missed. So it's almost a sure bet, if you are researching someone who was prominent and wealthy in a Southern slave society, that they were a substantial slaveholder, and that a substantial part of their wealth was tied up in slavery, and that was true of Gaston, and that’s what the records show.


Adam Rothman
Yeah, and it’s striking that even as he’s making public pronouncements condemning slavery, his investment in slavery keeps growing.

And we do have one example in the Georgetown Slavery Archive of Gaston actually giving a person that he owned to one of the Jesuit priests to be educated and emancipated. A man named Augustine, or Augustus. But that's only one person out of you know more than 100 that he owned. So that's an interesting thing to think about. But the contrast between his public pronouncements condemning slavery and his growing wealth in enslaved people is a striking contradiction, and it's a contradiction really at the heart of the American paradox of a country committed to liberty, yet dependent on slavery. I think it’s worth just mentioning, you know some of the names of the people that Gaston owned that are recorded in his will. Because I don't think their names have been mentioned in relation to Georgetown's history before, even though Gaston is one of our key historical figures. And so you went through, you and I went through, with some of your students, these names. Some of these names are really hard to read, its hard to decipher. But I feel like the names are quite powerful to read and to think about. So the first one is a woman named Annakey, and the second one is a woman named, or a girl named Mary, who's her daughter, Annakey's daughter, and then the third name is a girl named Ann, who's the daughter of Mary. So the first three names on that inventory represent three generations of enslaved people, all owned by William Gaston. So that really puts a human face on this idea of Gaston's cross-generational investment in human property. So I encourage anybody who's listening to this conversation, I encourage you to go to the Georgetown Slavery Archive website, and read the list of names that are included in the inventory.

Do we know anything about what happened to the people Gaston owned after he died?


John Mikhail
That's a great question and I'm glad, Adam, that you underscore the humanity and the names of the individuals Gaston enslaved. It was important to me to try to do what I could to bring those names to light, and I was really grateful that you lent your expertise in that endeavor, because, as you mentioned, the the handwritten estate inventory that we have is hard to decipher, and having the eagle eye of someone like yourself was a really big help. So together we produced a second version of the transcript of the names of the enslaved persons, and as you mentioned it's up on the Georgetown Slavery Archive. So we hope that researchers and perhaps descendants, and perhaps some other, you know other scholars, anyone who's interested might be able to go there and pursue those kinds of questions.

I have not had a chance to look deeply into what happened to the Gaston slave community. When he died, presumably the enslaved people were passed to his children. There is a will that I think you have worked with, that does not go into detail into which individuals went to which Gaston children, and so forth, but that was not unusual at the time, so there might be just a residual clause in the will that didn't go into specifics, and whoever the executor of the estate was probably distributed in a fairly typical manner the enslaved individuals to all of Gaston's heirs.

Gaston had a son who attended Georgetown, and then he had actually two grandsons who attended Georgetown. I've been reading the terrific three volume History of Georgetown by Professor Curran, and some of that information is documented in those volumes, and if one were to pursue the question that is, you know, one place to go, is to look into the estate inventories and the tax and census records of Gaston’s children and grandchildren, and to try to trace out what happened. I should mention that New Bern, North Carolina, which was Gaston's hometown had a strong and vibrant, and thriving to some extent, free black community. And I have not had a chance to research the sort of documentary records of that community. But one might imagine that there might be some information there, both about the community itself and also the enslaved communities who presumably interacted with one another in various ways. So there are some leads there for researchers or descendants who might want to, you know, to pursue that research, and it's something I hope to do at some point as well.


Adam Rothman
Yeah. Well, yeah, there's certainly more research to do, and I think tracing what happened to that enslaved community could be very valuable for both family historians and anybody interested in the black history of North Carolina, more generally. About, I guess it would be about twenty years after Gaston's death, emancipation came to North Carolina and one wonders how many of the people Gaston owned at the time of his death saw the light of freedom, I wonder?


John Mikhail
Yeah, I think it's a reasonable likelihood that many of them did. So, you mentioned the intergenerational nature of Gaston’s slaveholding, and one of the really striking discoveries was how many young children were enslaved by Gaston, as a function of the fact that the black families who he enslaved were reproducing. And so, for example, one can see in the estate inventory, when you compare the estate inventory to the most recent census, the 1840 census, it's possible to identify that something like 21 or 22 enslaved children were born on Gaston's plantation in just a four or five year period in the 1840s. And, as you point out, those people would have been young adults when emancipation occurred. So if we passed forward twenty or so years, you’re talking about a group of people who were in their, you know, early to mid 20s. Or maybe mid 20s, to late 20s or 30s.


Adam Rothman
Or you could say fighting age.


John Mikhail
Yes, that's true. That's a great point. I bet some of them may have enlisted, or may have fought. I don't know you would know this better than me about how that worked, and whether they were you know, fought for the Union or fought for the Confederacy, or what young adults were doing at the time in those contexts, I don't know enough about that.


Adam Rothman
Yeah, while we do know that some of the GU 272 actually fought in the Civil War for the Union and their pension records are actually wonderful sources of information about their lives and their families, so maybe something like that is available for the Gaston enslaved community as well.

But, sorry this to me is like a really important foundation for understanding where Gaston is coming from as a politician and a jurist. He lives in a slave society. He's a slave owner. He's one of the top one percent of the slave owning class. Yet he's still, as a jurist, has choices to make about the cases that he sees, and he sees a lot of cases that have to do with slavery sitting on the North Carolina Supreme Court. You mentioned earlier that slavery was an economic system and a political system and a social system, but it was also a legal system, and it had laws and legal rules about how it would operate which jurists had to weigh in on from time to time, in fact quite often. So there were two cases in particular that have gotten a lot of attention with respect to Gaston's opinions.

One, and you've touched on both of them already, but I want to dive a little bit deeper into each of them. The first is a case called State v. Will in 1834 which involved enslaved people's right, if that's the correct word, of self-defense. And the second case in 1838 was State v. Manuel, which had to do with the citizenship rights of free people of color. So let's start with State v. Will a fascinating and I think quite an important case. I was wondering, since you're the legal historian here, if you could just briefly tell us what the facts of this case are and its significance.


John Mikhail
Yeah, it's an important case, and a somewhat well known case, for reasons that I'll explain in the study of Southern Slave Law. The basic


Adam Rothman
Can I interrupt you, there, let me interrupt you there, John, just for a second, which is to say that you know, a lot of this stuff, especially about the cases, you know it's not hidden history. It's not unknown, at least to scholars. I mean It's all out there, and it's, I think, for the folks at the Georgetown community who are not familiar with any of this, you know it's time for us to realize the information that we have about this at our disposal, about these aspects of our university's history. So, John, one thing I really appreciate is you, you know, digging into this scholarship and bringing the information that scholars have developed into the conversation about historical memory in our community. So I really value that. But I just wanted to make that clear to people who might be listening.


John Mikhail
I agree. I think you're right to point that out. So in the letter that I wrote to President DeGioia I discuss these cases that we're talking about and Gaston’s slaveholding. But I also attached several enclosures or appendixes, and one of them was a list of all of the cases, or at least you know, probably most of the cases I'm not sure it's an exhaustive or complete list, but the cases that Gaston both argued as a lawyer and decided as a judge that related to slavery and the list that my research assistants and I came up with is about 130, or over 130 cases. And, as you point out, this is very findable public information. The cases are all in the North Carolina reports that various databases house, or, you know, bound volumes, that law libraries might hold. And so if one wanted to have a full and complete understanding of Gaston's jurisprudence and his activities as a lawyer with respect to slavery, one would need to read all of those cases, or at least many of them, and then be in a position to draw generalizations. I haven't read all of them. I've read some of them. But it's important to keep in mind that, as you say, this is public information. And I do think it's important, you know, just addressing this question briefly, that the Georgetown community generally, find out more and increase its understanding of the different figures who are connected to Georgetown's history like Gaston. It’s not actually that hard to do, or to find this information. It exists. And certainly in the case of the cases, and it's just a question of putting in the time to reading about them.

There is a modest, I would say, amount of scholarship on Gaston, so Gaston is. I described him as an important figure. He's not quite at the level of a John Marshall, or a Henry Clay, or John C. Calhoun, or Daniel Webster. Someone like that. But he knew all of those people and was well known, you know at the time, and he might be thought of best as a kind of a second tier.


Adam Rothman
He's a B-list historical celebrity, right?


John Mikhail
But B-list people were pretty important. They help to shape society and the law, and so forth. So there is scholarship on Gaston, North Carolina historians, and you know, there's different ways to kind of enter into the world of Gaston scholarship. And Georgetown actually, for example, had a Phd. Student in the 1930s who wrote a dissertation on Gaston and then turned it into a book, and it's the sort of standard biography, still, of William Gaston, I think it was published in the either the 1940s or the 1950s is when he finally turned his dissertation into a book, in that familiar way. So so there's some work on Gaston. But it’s limited, it's not nearly the volume of literature on a John Marshall, or a Thomas Jefferson, or someone of that order.


Adam Rothman
And much of it is what we’d call hagiographic, admiring of Gaston, and emphasizes, as we've mentioned already, his at least kind of moderate anti-slavery leanings which your research shows is perhaps wishful thinking, or an exaggeration, or at least things are a little bit more complicated than that. So why don’t we dive into State v. Will as a starting point for that.


John Mikhail
Yeah, and sure that is a good illustration of what you just described, which is a case that has been glossed in a very favorable way to Gaston. But I think a a more accurate assessment of the case would yield a somewhat different conclusion. So State V. Will was a case in which an overseer on a plantation in North Carolina, a white overseer, violently attacked an enslaved man, after an altercation, or after a dispute, and actually shot the enslaved man at a very short range, and then, together with others, chased after him, after the the man who was wounded was fleeing, and caught up with him, and they had a physical struggle, and the enslaved man named Will actually had a knife, and struck back at the white overseer and killed him.

So this is the kind of altercation that probably happened with some frequency in Southern societies, which is to say, enslaved people sometimes fought back. They were not simply the passive objects of violence, but they sometimes defended themselves. And it raised the question of what legal rights Will had to act in that way. You know, he was charged with murder. He was charged with murder, which was a capital offense in North Carolina at the time, and he was convicted of murder and sentenced to death. But his case was appealed to the North Carolina Supreme Court, and Gaston and the court decided his case in a way that is complicated, but has contributed to this question of you know just how anti-slavery or progressive was Gaston's opinion. And what Gaston did in a nutshell was to hold that under those circumstances, that it was inappropriate for Will to be charged and convicted of murder. But the appropriate charge was actually manslaughter. And this is a little bit technical in the legal sense, because what it means is not that Gaston held that Will had a right to self-defense, because a right to self-defense would result in an exoneration or an acquittal. Right, if individual uses force and self defense, and kills another person, that’s a justification in the eyes of the law, and it results in an acquittal, and that's not what happened to Will. What happened to Will was that Gaston ruled that he was entitled to a lesser charge, or he deserved a lesser charge, namely, a charge of manslaughter. That meant that Will couldn't be executed for murder. So there's like there's an aspect of the decision that did in fact, protect, Will, and enslaved people like Will, in these kinds of situations and Gaston ruled that it would be unlawful to convict such individuals of murder and to execute them. But the important point not to lose sight of is that Gaston didn't go all the way to say that Will had a right to self defense. What he did is stop at a midway point, if you will, but still a point at which the ruling held that Will, excuse me, had acted unlawfully. He actually had, in fact, committed a crime in defending himself against the white overseer in this way, and he was appropriately, convicted of manslaughter, not murder. There are aspects of this case that make it really quite rich and interesting and complicated, just as a legal matter, because the human element, of course, which is, you know, important not to lose sight of as well. But one aspect, for example, is that we always have to ask ourselves when we read old opinions, especially appellate opinions, Who is bringing the case? Who is paying for the lawyers?

Adam Rothman
I was actually just going to ask that. How did Will, as an enslaved defendant, appeal the judgement of a court, kind of a naive question but I think that a lot of people would wonder how that was even possible in a slave society?


John Mikhail
Exactly, and that’s a critical question to ask. And the answer in this case was that Will's enslaver, paid for two very expensive and prominent lawyers in North Carolina, who argued on behalf of Will that murder was the inappropriate charge that he should not be charged or convicted with murder, and that manslaughter was the appropriate charge. And what they were basically arguing was that the way Will acted in this circumstance was excusable, was not blameable in exact in the same way, even though what he did was unlawful, because, as a brute, baseline fact in North Carolina, slaves were not recognized to have a right to resist the force directed at them, if the force was by an overseer or an enslaver who had what were deemed to be certain rights of inflicting violence as a form of punishment. And that sort of provided the contours. On the other hand, elite slaveholders, and one might even put in in quotations “enlightened slaveholders,” I use that term advisedly, but there was a recognition that the institution of slavery needed some safety valves, I think, and some limitations


Adam Rothman
Guardrails


John Mikhail
And even if you think about this very, very crass, materialistic sense, enslavers, slaveholders had an economic interest in the protection of their enslaved people, particularly in an economy where slaves were often rented out to other individuals who would use the labor, you know, for a fee, and enslavers wanted their enslaved people to be protected from certain forms of violence in those circumstances, and they didn't like it when a violent, out of control overseer inflicted harsh forms of punishment, or you know, and physical violence even up to death. And so there's this dynamic tension, if you will, right at the heart of the institution of slavery that Gaston was wrestling with. What you alluded to, though earlier, is really important to bear in mind, at no point did Gaston's opinion attack the institution of slavery, or seek to undercut the institution of slavery. What he did, I think that maybe the most accurate description is, he mitigated a certain excessive harshness that might have been permitted in these circumstances, and so tried to limit that. There was, I should maybe make this a little more concrete, there was a prior case, very famous case, maybe the most famous case in the history of North Carolina slave law called State v. Mann, and this is pretty well known to historians. And it was a case in somewhat similar fact pattern, and in that case the Court, Supreme Court, in an opinion by the Chief Judge of the North Carolina Supreme Court, a judge by the name of Thomas Ruffin, held, or seemed to hold, that there were almost no limits on what enslavers or overseers could do to enslaved people when using violence. And so Will, the case that Gaston decided, State v. Will, is generally thought of as a case in which the North Carolina Supreme Court stepped back from the extreme holding of State v. Mann, and moved to a somewhat more moderate position that did put limits on the ability of enslavers to inflict that kind of violence. There's sort of more to say about, you know just what those limits were. And my view, for example, is that Geston was very careful not to disturb the core holding of State v. Mann, but just to fill in some of the gaps, or to maybe place limits that had not yet been fully addressed by State v. Mann. And there's some scholarship that suggests that he went further than that, that he was really trying to, if not overrule State v. Mann, strongly push back and reverse the course that that case had set. I think it's not quite what he did, and it's, you know there's a debate to be had, there’s a discussion to be had, but what is clear, and what I wanted to bring out in the letter that I wrote, and the work that I did, was that it's just not accurate to depict this case as a case that was anti-slavery at its core, or, you know, recognizing a right of enslaved people to resist physical violence. It just didn't do that. I think it did something much more modest.


Adam Rothman
Yeah, and you could, one could make an argument that far from anti-slavery, these kinds of mitigating gestures, gestures to mitigate the power and the violence inflicted on slave owners is fully consistent with a paternalistic ideology that slave owners are looking out for the interests of the people that they own. And so a case like State v. Will is fully consistent with a paternalistic defense of slavery, not the opposite.


John Mikhail
And you will certainly be familiar with the work of Eugene Genovese and other historians, while that there is a literature about the culture of Southern slaveholding and the, as you say, almost like the honor culture or the aspects, how slaveholders understood themselves, right, and often they understood themselves to be running a kind of a paternalistic, benevolent, you know, in their own eyes.


Adam Rothman
Benign


John Mikhail
Of course we would critique that today. But so this case, for example, is one that Genovese discusses in some of his work, and other scholars have have discussed it because it is an interesting complex case. It shows something going on beyond, you know, a simple account of of what Southern slavery was about. It just reminds us that you know, first of all enslaved people fought back. I think that's an important thing to remind ourselves of, that they were agents in their own context, in ways that often did disrupt the systems of law and domination that they confronted. And it put the judges like Gaston in challenging positions, so to speak, and they had to kind of be constantly rethinking how to modify and modulate the system while preserving it. And certainly, I think Gaston did have an interest in preserving the system, and his opinion is consistent with that. And so that’s, you know, why it's a complicated case, and one worth studying, you know. I think it's a kind of case that would be a great, it’s not studied in law schools typically, it’s an old case, you know, that is not alive. It doesn't prevent live issues, obviously, but it would be a great case to assign in a course on the history of slavery, I think, and the way the law of slavery operated, because it has all of these different features.


Adam Rothman
Or perhaps in the history of Georgetown, to understand these other dimensions of William Gaston's life and career. Yeah, it's just a fascinating, a fascinating case. As so many of these cases are.

So the other case that Gaston is really well known, for is State v. Manuel, which has to do with the rights of free people of color. And I actually, I even hesitate to introduce the case because your analysis of State v. Will told me that I was introducing State v. Will incorrectly, in the first place, so I'm eager to hear your thoughts on on State v. Manuel. And just as another, a further preface to this one of the reasons why this is a celebrated opinion is because Gaston's opinion in State v. Manuel gets cited in the dissent in Dred Scott about a decade later, in defense of the rights of free people of color. So it has an imprint on one of the key moments in the history of American law.

But let's go back to the case itself. Maybe we can talk about Dred Scott in a bit. But what was going on in this case, and how did Gaston approach it?


John Mikhail
So this is a really interesting case, and I'm glad you mentioned the Dred Scott connection. I think it would be good to return to that. But this is an 1838 case in North Carolina, and it involved a law that the North Carolina legislature had passed which imposed on black, free black individuals in North Carolina, but not on white residents, a peculiar kind of system, in which, when they were unable to pay the fines or the legal costs associated with their case, they would be basically indentured or put into a forced labor system where they would have to work off the cost that they couldn't afford by being rented out or hired out to any individual who would step forward and say, I’ll take that offer. So it was a basically like a kind of forced labor system. And we're talking about, you know, a fifteen or twenty dollar fine or a twenty five dollar fine that Manuel, a free black resident of North Carolina, was unable to pay. And he challenged the law. He said this is unconstitutional. So that's interesting. He brought his case. I don't know a lot about the legal representation that he had, but he brought a case challenging the constitutionality of this law.


Adam Rothman
Can I ask you, under the North Carolina Constitution?


John Mikhail
Under the North Carolina Constitution, not under the federal Constitution but under the North Carolina Constitution, which had certain provisions that would seem to prevent this kind of a penalty being imposed on anyone. And what happened was that the Attorney General of North Carolina, in the case, responded to the challenge by saying, this is a black person. He has no constitutional rights. He's not a member of the polity of individuals for which the Constitution attaches, you know, imposes rights or extends rights. So he made, the Attorney General of North Carolina made a kind of an extreme, broad argument that the simplest and easiest way for the court to respond to Manuel's challenge was simply to hold that he had no constitutional rights under the North Carolina state constitution, and Gaston rejected that argument. And this is again one of the reasons why commentators have sometimes seen quite a positive progressive element in this case, and what Gaston did, Gaston said no. On the contrary, free black uh individuals in North Carolina, if they were born in the State, are citizens of North Carolina, just as much as white citizens. And that was a noteworthy part of the case. You know it was, and it's why, later on in Dred Scott, when the citizenship of African Americans, excuse me, the citizenship of African Americans was at issue, the fact that Gaston some two decades earlier had held that free blacks could be citizens of their state was significant, and it came up in Justice Curtis’s dissent.

The problem is that in addition to


Adam Rothman
I was waiting, I was waiting for the catch. There's a catch.


John Mikhail
The catch is that the decision didn't stop there, Gaston also went on to hold that the statute itself was not unconstitutional. So, even though Manuel was a citizen, Gaston held that the State of North Carolina could legitimately discriminate between its black and white citizens, and pass a law like this that would apply only to black people. So today that strikes us as obviously unconstitutional, we're, we understand that equal protection of the laws, whatever else it might mean, it certainly means that the law can't overtly discriminate on the basis of race, and that's what the equal protection clause of the Fourteenth Amendment, for example, eventually achieved on a nationwide basis. But at the time what's interesting


Adam Rothman
That’s still thirty years later. That's still thirty years ahead.


John Mikhail
In the State of North Carolina, a judge like Gaston could both hold that free blacks were citizens and had constitutional rights, but that the Legislature of North Carolina could, in fact, pass a law that overtly discriminated against only black citizens or only black individuals in the society, free blacks not enslaved people, and that was just okay. And so that second part of the case is what's really crucial, I think, to to grasp here, and is often missed in discussions of this case.


Adam Rothman
Yes, precisely. I mean, I think that second level of the case is vital to understand, and then in part that just reminds us of how contested concepts like citizenship were in the nineteenth century, both before and after the Reconstruction amendments. The question of Who is a citizen? But not just, who is a citizen, but what does citizenship entail? So this idea of unequal citizenship or different grades of citizenship, or first and second class citizenship seems, which seems so foreign to us now, might have been part of the mental world, or the legal world that that Gaston was was operating in. So there's something about this case that reminds us of the strangeness of the past that different different rules applied, different belief systems were in play, and I think it's both with this case and with State v. Will, it's almost like Gaston is walking a tight rope between the kind of legal foundations necessary to to uphold and maintain slavery and a racist society, while at the same time carving out a space for some kind of protection, some kind of recognition of the humanity and presence of both slave and enslaved, and free black people in North Carolina society. So it's quite fasc-. As a historian it's fascinating to see him navigate that very narrow and treacherous path.


John Mikhail
I think that's right. And it I think it's worth noting that eminent historians, like the legendary African American historian John Hope Franklin, who was, you know, the leading expert on the history of free black citizens of North Carolina, praised Gaston for what he did. Gaston was, as you just said, navigating a very difficult situation. He, I certainly think there were limits to how we you know, he was not anti slavery at this core, I don't believe, or he, you know he might have wished the institution didn't exist, like many people did in a wishful thinking kind of way, but he never acted directly against slavery as an institution, as we've said, but he did seem to have solicitude for free black citizens of North Carolina, and concern for them, both in this case and in other episodes in his life. So he attended, and was an active participant in a North Carolina State Constitutional Convention in the 1830s in which the question arose whether black citizens should have the right to vote, and up until that time they did have, at least nominally, the right to vote, and they did exercise the right in many cases, and, as is, you know, regrettably the case in American history, sometimes there's declension, like things go from a not great situation to an even worse situation, and that's what happened in North Carolina. There was a movement to strip the franchise from free black citizens, and Gaston fought against that. He fought at that constitutional convention for the right of free black citizens to vote. So it's another aspect of his biography, and it does suggest that he was in a somewhat different position. He was not a pro-slavery ideologue, like a John C. Calhoun, or anything of the sort. He was a member of the American Colonization Society. He was, you know, in some ways, I think his intellectual and political roots were with the Federalists in the 1790s and then the Whigs, and those people tended to be in a somewhat different place than the really overtly pro-slavery, you know positive good kinds of people. That wasn’t Gaston at all, and he did do some things to try to push, I think, the law in the society in a more humane direction, both for enslaved people and for free blacks. Certainly, I mean that is a noteworthy aspect of his of his biography, but with the limitations that we discussed. Right, he was prepared at the same time to say, of course the state can treat black and white people differently. They have that discretion. And there were other cases that he did you know, said the same thing, and said things in his opinions which today strike us as as you know clearly racist. That that is certainly also true, so I would not describe him as anti racist, or anything of the sort. But he, you know he occupied this somewhat somewhat different position than many of his contemporaries.


Adam Rothman
Yeah, interesting. And I would say that, you know, on one hand, we could argue all day about Gaston's attitudes and his, the way he performed his role as a jurist in regulating the slave society that he lived in, and those are important conversations to have. But we can also use the legal record to think a little bit differently about the history altogether, and instead of focusing on Gaston, focus on people like Will and Manuel, and Annakey, Mary and Anne, those first women and girls listed in Gaston’s estate inventory. And just to think about what their world was like, what their, what choices they had to make, and how they made them. So I think you know we can talk about Gaston, but we can also use Gaston as a springboard to think about other things in nineteenth century American history, as well, like the place of black people in the slave society that Gaston helped to command.

So I really appreciate, I really appreciate your thoughtful and nuanced understanding of Gaston’s career, and the cases that he was involved with. I think it's just so valuable to understand these in a nuanced kind of way.

And so we don't have that much more time. But you know we have all of this. You've gathered all this information for us. You've given us some new things to think about with respect to the historical record. And obviously, you know, the Georgetown community has to absorb this information and think about what to do with it, and to think about how we should think about William Gaston. And we know there's already some conversations going on around campus about whether Gaston is somebody who, you know, should be honored in part, as part of Georgetown's history. So, as somebody's who’s really dug deeply into Gaston's life, how would you like to see the Georgetown community, and others, think about Gaston? What do we do with this information? What do you think? And maybe it's not our place to tell people how they should think about this stuff, but we invariably get asked, you know, what do we do about somebody like Gaston?


John Mikhail
Yes, and I agree with the last point that you made, so as a starting point, I think this should be a collective, you know, enterprise, it's not the discretion of the researchers who happen to uncover information. So on on this question I feel like I’m just a member of the community like like anyone else, and trying to draw conclusions about, you know what what Georgetown might do with this information, that would be, you know, point point number one.

I’ve thought a bit about this question. I mean Gaston Hall is a very prominent place on campus. It's the most renowned auditorium at Georgetown. It's the site where presidents and prime ministers and dignitaries and important people of all kinds come and address the community, and I do feel that Georgetown should do something, to acknowledge Gaston's ties to slavery, because they are substantial. They're not in any way inconsequential. He was a major jurist in the Southern Slave Society, and was part of propagating and maintaining the system of chattel slavery, and he was a, as we said, a substantial slaveholder himself. And so these are important facts that I hope in the first place, people become more aware of. So one thing I hope might happen is just more conversations like this, and programs and educational initiatives that raise awareness about about Gaston. I don't believe that Gaston Hall was named, given that name for any reasons related to his slaveholding or to his role in the history of slavery, and there's a contrast there with, for example, Confederate memorials around the country, where, and you would know this history probably better than I do. But in many instances there was a kind of an ideological motivation to erecting a statue, or to naming a building, and so forth. The lost cause, ideology and a pro Confederate, and really distorted the history and so forth. And I think the the connection that Georgetown had historically to Gaston was well known by the leaders of the university when they decided to name Gaston Hall, and they were focused on things like, the things you mentioned at the outset, he helped secure the charter of the of the university in Congress in 1815, he was the first student. And he was really one of the most, maybe the most prominent alum of the university. He didn't get degree from Georgetown, he ended up graduating from Princeton. But he, some like to say, the first dropout.


Adam Rothman
We don't like to talk about that. But yeah, I would add that he was one of the most prominent Catholic politicians and jurists in the early United States, and that's also an important part of his character and career.


John Mikhail
And it did cause him to stand out on that dimension as well. So he fought for religious pluralism of a certain sword in North Carolina, and the ability of Catholics like himself to hold office and so forth, and he suffered some forms of challenge, or maybe not, maybe discrimination is the wrong word. But, on the other hand, he was part of a tradition and a culture of elite Southern Catholic slaveholding. That is, it is familiar to you, I know, and should be familiar to more members of the Georgetown community, because that is really where Georgetown's roots as an institution lie, that the Jesuits were slaveholders. Many of the families who sent their sons to Georgetown were Southern slaveholding families, and for many decades Georgetown really reflected its character as a Southern University. And many, many of its students and its faculty, and so forth, came from slaveholding families, and Gaston was emblematic of that.

You said something, Adam, in the article in the Hoya that came out about this research, or you were quoted as saying something that I really agree with, which is, as I recall, that you said, something like the following: that at a minimum Gaston Hall, which is a space that's so suffused with history, should incorporate this aspect of Gaston's history and biography. So you know it. It seems to me a shame that a space like Gaston Hall, which is so rich and suffused with with historical symbols and emblems and images, would not in some manner recognize, the you know, the deep connections to slavery that that Gaston did have. And that's just one possibility. I can imagine many different ways that the community might go about first understanding, and then responding to this information. But some acknowledgment at a minimum would seem to be to be appropriate.


Adam Rothman
Yeah, absolutely. Some acknowledgment and recognition and, more awareness just on the part of the university community, that, Gaston's role in this history. And I totally agree with you that he really is emblematic of the university's broad and deep connections to slavery in that era, and we need to do a better job of understanding that.

But, John, I just want to again thank you for the research that you've done, for opening up this conversation about history and the landscape of historical memory on our campus. I think it's a really valuable conversation. And I look forward to collaborating with you on more research in the future. It's been really great to work with us, to work with you on this history.


John Mikhail
Thanks, Adam, and I'll just close by saying that your work on the Georgetown Slavery Archive, and on the working group, and all of the efforts that you've made, and many of your colleagues have made in raising awareness at Georgetown about the university's ties to slavery have been inspirational to me, so it's been a real pleasure to get to know you in this context. And I want your viewers to know that you've been very generous and supportive of me and the work that I've done in this regard, and I’m really deeply appreciative of that, and I think it it does go to something, I think, that you also have said, which is that this is really kind of a collective effort; that there are many aspects of Georgetown's history that deserve more attention, and there's plenty of work to go around, whether it's students or alumni, or faculty, or staff, or any member of the community. You know there are a lot of different pieces of this, of course, work with the descendant communities, is of most importance. So let me just close with that remark, to say that I'm glad to be part of this process, and hope that we can all continue along the path that that you've helped to chart.


Adam Rothman
Amen to that. So anybody who's listening, if you want to learn more about William Gaston or Georgetown and the Jesuits' history of slavery, go to the Georgetown Slavery Archive online, slaveryarchive.georgetown.edu, and read up. Thanks for listening. We'll see you soon.

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