Tuesday, April 21, 2009
Acknowledging What Harvard Law Owes to Slaves
Harvard Law School was founded with money amassed through slavery.
This is a fact that HLS, my alma mater, does not try to hide. But it is a truth that is not exactly advertised either. If you visit the “Our History” page of the law school’s website, you get a somewhat-whitewashed version of the school’s heritage. More than a third of the 311-word synopsis of HLS history reads as follows:
The Law School traces its origins to Isaac Royall, who in 1781 left land from his estate in nearby Medford to Harvard University, with the proceeds intended to "endow of a Professor of Laws at said college, or a Professor of Physics and Anatomy." Harvard took the opportunity to fund its first chair in law, and the Royall chair continues to support an HLS professor today, more than 200 years later.
In 1806, Royall’s heirs sold the rest of his estate and used the funds to establish a school of law at Harvard University. The Royall family coat-of-arms -- three stacked wheat sheaves beneath the university motto, Veritas -- was adopted as the school’s shield.
What this account omits entirely is that Isaac Royall was a slaveholder – his donated estate was built from slave labor and the slave trade.
I appreciate that the issue of how Harvard Law deals with its slave-money origins raises a set of very difficult questions. (A very thoughtful and wonderfully engaging discussion by Janet Halley, Harvard’s current Royall Chair, can be found here.)
Nonetheless, I think there is one simple question of fairness that transcends the historical, political, and social complexities: Shouldn’t HLS acknowledge Royall’s slaves as it does all other benefactors?
Surely they are benefactors. We know that the slaves were not paid the wages they were owed for their labor. So, to borrow a concept from remedies, it seems only fair that Royall’s slaves should, in retrospect, be awarded something like a constructive trust on their unremitted earnings. That trust property, having been converted to charitable contribution, leaves a residue of acknowledgement of giving. That acknowledgement is currently possessed, posthumously, by Royall. It seems only equitable to shift that res to the account of the slaves, or at least allow them to share as co-tenants.
I think it follows that, at a minimum, Harvard Law ought to acknowledge the slaves’ contributions in the school website’s historical narrative. And I think a tangible statement on campus – a wall-mounted inscription somewhere – would very much be in order. Many of the slaves’ names are known and are listed by The Royall House Association. Those individuals should be acknowledged. Using the information found on the Royall House Association’s rolls, I imagine the inscription might read as follows:
IN GRATEFUL ACKNOWLEDGEMENT OF THE INVOLUNTARY CONTRIBUTIONS OF THE SLAVES OF THE ROYALL ESTATE FOR THE FOUNDING ENDOWMENT OF HARVARD LAW SCHOOL:
OLD NEGRO MAN
GIRL 6 YEARS OF AGE
AND OTHERS WHOSE NAMES ARE LOST
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Tracked on Apr 22, 2009 10:17:00 AM
Surely the slaves have contributed, and deserve to be acknowledged. But are they "benefactors" and is their contribution "charitable?"
Thankfully your proposed inscription acknowledges that. I would think it in terribly bad taste to demand an inscription thanking the slaves for their "charitable contributions," or for their "good will" and "beneficence."
Posted by: AndyK | Apr 21, 2009 8:16:43 PM
I agree that your proposed inscription is appropriate--it may be one of the very few things that could induce me to give money to our alma mater--but why is your point limited to involuntary contributions to the founding of HLS? Wouldn't the same constructive trust argument apply to any wealth created through slavery?
Posted by: Jennifer Hendricks | Apr 21, 2009 10:29:36 PM
Eric, this is really great. Really, really great. Will you organize an alumni campaign to actually make this happen? I'll help.
Posted by: Paul Gowder | Apr 21, 2009 11:53:16 PM
I am curious about how you think Harvard Law School should recognize the contributions of the women whose work helped create and support the wealth of so many of Harvard Law School's contributions in the past, when the Law School was all male-- contributions often made only in the names of the men. Should they also receive a mention? Or should they be ignored?
Posted by: Orin Kerr | Apr 22, 2009 12:00:40 AM
Orin, it seems like there's a good case for their inclusion too. It's perhaps less urgent than in the case of the slaves, if only because slavery is the most unjust thing one human can do to another (with the possible exception of genocide). But why not also acknowledge the previously unacknowledged (if not forced in the same sense as that of slaves) contributions of the wives of the great?
Posted by: Paul Gowder | Apr 22, 2009 12:19:21 AM
My question is really getting at the deeper concept here. One argument would be that the law school should recognize everyone whose work helped support the individuals who have made donations to the school, but who would not otherwise be recognized, out of a sense that one person's donations is always the product of the work of many. Those many should be recognized. Another argument would be that the law school should thank Royall's slaves because of the expressive value of doing so: It is a recognition of past guilt, and an effort to symbolically correct the law school's guilt. I'm curious about which one Eric (or you) has in mind.
I suppose my question draws in part from a surprise that the argument for recognition appears to be made here using the first argument rather than the second argument. I would think that the first argument, if really taken seriously, would mean thanking a lot more people than Royall's slaves. In contrast, the latter argument would not. So I guess my question is which of the two arguments are really driving the proposal. You suggest one way to make the former argument addressed only to Royall's slaves by arguing that there is urgency with slavery given its great unjustness. But the slavery was over two centuries ago, making it a somewhat unusual case for urgency. And presumably there have been many donations to Harvard Law School made by those who profited from wars that included genocide much more recently than 200 years ago; those donations may have been much less small and less important to the school than Royall's, but I'm not sure if the idea is to only recognize the assistance for the really big donations.
So I guess I'm not sure which argument is really driving the proposal; that's my question, at least (and I should emhpasize that I don't follow this issue closely, and I'm not familiar with the literature here, so sory if this question is an old one that has long ago been answered).
Posted by: Orin Kerr | Apr 22, 2009 1:43:48 AM
I don't think either of Orin's two theories quite capture the real reason that this suggested memorial is warranted. It's not simply that all contributions should be acknowledged, because they shouldn't. A wealthy donor's parents, spouse(s), and friends all contribute to his success and earnings, but this doesn't distinguish the donor from anyone else in the world. We take as a given that society is interconnected and that all people can attribute their successes in large part to others.
On the other hand, we don't typically account for the enormous contribution to many early American estates that came from uncompensated (or, perhaps equally apt, stolen) slave labor. Most quick biographies of early Americans (like the one of Royall quoted above) make no mention of the role slave labor played in amassing their family fortunes. The memorial could be understood as a simple correction of the historical record. HLS claims that Royall was its sole initial benefactor. This is wrong. It was Royall and many slaves.
I don't think the suggestion in this post is inspired by guilt, or at least it doesn't seem like it to me. There's nothing in the text or tone that seems apologetic, and that's why I find it appealing. Slavery is a strange and awful fact about our past, but it's also never going to change, and I don't think a culture of guilt and sorrow is socially constructive. The distinctive thing about Eric's proposal is that it simply treats slaves as humans who made important contributions to the founding of HLS, and in so doing corrects a historical fact that is far too often overlooked.
Posted by: Dave | Apr 22, 2009 2:29:31 AM
Obviously, I can't speak for Eric, but I think his idea is worthy of particular enthusiasm for all those reasons put together: 1) the particularly grievous and distinct injustice of slavery, 2) the extreme significance of the donation at issue, 3) the importance of acknowledging the real contributors.
But more importantly, there's just something distinct about the kind of exploitation slavery is that makes this sort of thing particularly appropriate. The estate that was donated to start HLS was built on the backs of slaves in a way distinct from the way it was built taking advantage of (I presume) the uncompensated household labor of Mr. Royall's wife. For one thing, spouses are often understood (albeit falsely) to be joint partners in this kind of gift and in the lives that built it, while the sacrifices of slaves are totally disregarded.
Anyway, the combination of the foundational status of the donation and the overwhelming injustice of slavery seems to suggest not that the argument you identify can only be addressed to the case of the slaves, but certainly that it's an excellent place to start. Should it turn out, for example, that HLS received a large donation from stolen Jewish gold in the holocaust, it would be equally obligatory to acknowledge those tainted sources as well.
Posted by: Paul Gowder | Apr 22, 2009 2:30:43 AM
I have no strong views on the basic proposal. I'm not more interested in it with respect to HLS than any other longstanding American institution; I don't want to practice the fairly common trope of Harvard exceptionalism. But I have no objections to acknowledging and confronting the role of slavery in institution-building. I do, however, doubt that much is gained by putting things in the legal language of a constructive trust, and that something may be lost. On the no-gain side, I think we could reach a similar result without legal language, so that makes the use of that language somewhat window-dressing-ish. On the loss side, I see two problems. First, when we translate moral issues into legal terms, I think we may disserve both the legal and the moral. Second, the arguments for moral obligation are stronger than the arguments for legal obligation, which are subject to (in my view quite effective) legal counter-arguments. I know we're lawyers, but I think we should resist the urge to turn moral arguments into legal ones.
Posted by: Paul Horwitz | Apr 22, 2009 10:02:33 AM
Dave: I think that falls under Prof. Kerr's first category, except you're setting a threshold below which there's no recognition and stipulating that the slave contribution is above the threshold.
I see the expressive value, but I see no value outside that, and again, thanking a group for involuntary contributions under a theory of economic interconnectedness seems gauche.
Posted by: AndyK | Apr 22, 2009 6:56:18 PM
I agree that Orin appears to miss the point with his two theories, because it's perfectly sensible to suggest that the law school recognize the contribution of slaves but not, say, wives of the 19th century, on the ground that slaves' contributions were simply of a different magnitude.
That said, I'm not certain why you feel it's "gauche." The term seems normatively loaded - and since you seem to recognize that this proposal does not draw on guilt, I don't see the gauche-ness. Do you mean tacky? I suppose I see the point, but it doesn't seem any more or less tacky than naming buildings, erecting monuments, and otherwise loudly and publicly thanking the million other donors to HLS.
Posted by: runape | Apr 23, 2009 11:23:32 AM
My point was that Orin's first category is constructed at such a broad level of generality that it misses the crucial distinction between the kinds of unspoken contributions that are assumed to exist, and hence do not necessarily warrant mention; and contributions that are systematically unrecognized for different and problematic reasons, and hence may well warrant mention.
As for whether the proposal is "gauche", it's obviously a matter of taste, so there's not much reason to debate it. Still, it's interesting how differently I view the matter. The idea of acknowledging the contributions of slaves, however involuntary they may have been, strikes me as humanizing and dignified--quite the opposite of gauche.
Posted by: Dave | Apr 23, 2009 11:51:51 PM
On Paul's post -
I have a deep concern with this latest trend to try and "separate law from morality." I find this trend extremely disingenuous. From where is law derived? Is it not from morality or a sense of right and wrong?
I am afraid we are trying to eliminate the human being by trying to systemize the law into a set of predictable outcomes. If law is not derived from the human being's sense of right and wrong, I am unsure as to where it comes from, because last I checked, communities, governments, economics, etc. are all comprised of human beings.
Posted by: anon anon | Apr 24, 2009 9:03:06 AM
If not already done, perhaps Harvard could finance solid historical research first to try to find out more about the slaves and identify actual descendants? The proposed plaque and the results of historical research might be meaningful to them, or they might think talk is cheap. There is a high probability that different descendants would feel differently about it. Legal theories like unjust enrichment resonate more with lawyers than non-lawyers oftentimes, but it is naive to conclude without inquiry that non-legal remedies necessarily will be satisfying to all or even most potential claimants. There are strong parallels with Holocaust restitution and the debate over slave reparations generally. Good luck in your attempt to do the right thing. If there is a need to post the plaque, there is a question of whether the present day value of what was taken should be restituted. In non-legal terms, the question that naturally arises is: If Harvard benefitted from an immoral gift of the sweat of slaves, shouldn't it give it back to the extent possible? I am assuming underlying agreemeent that money is a proper remedy (even if paid to an estate), which many would debate.
Posted by: Jen Kreder | Apr 26, 2009 12:29:51 AM