Transcript - "The Failure of Abolition in American Law"

Transcript - "The Failure of Abolition in American Law"

February 8, 2024 -- Spring 2024 Law & Humanities Forum Series 

Listen to "The Failure of Abolition in American Law". 

BRYAN WAGNER: Hey everybody, I I will introduce our speaker. We'll get started.

So welcome on to the second session of our Law and Humanities Lecture series.

Today we'll be hearing from the brilliant and august Giuliana Perrone, who will be speaking to us about her great recent book published last year, “The Failure of bolition in American Law”. Thank you so much for being with us, Giuliana.

My name is Bryan Wagner. I'm a professor in the English Department, and I have had the pleasure of organizing this lecture series with Leti Volpp, the Robert D. nd Leslie Kay Raven Professor of Law and Director of the Center for Race and Gender. The center is delighted to host this series, along with Berkeley Law and the Division of the of Arts and Humanities.

Many thanks to Ariana Ceja for helping with the logistics for this event.

I'm ging to make a land acknowledgement and then I will introduce our speaker.

We recognize that UC Berkeley sits on the territory of xučyun (Huichin) (hooch yoon), the ancestral and unceded land of the Chochenyo speaking Ohlone people, the successors of the sovereign Band, the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to the Muwekma Ohlone Tribe and other familial descendants of the Verona Band. 

We recognize that every member of the Berkeley community has benefitted, and continues to benefit, from the use and occupation of this land since the institution’s founding in 1868. Consistent with our values of community, inclusion and diversity, we have a responsibility to acknowledge and make visible the university’s relationship to Native peoples. As members of the Berkeley community, it is vitally important that we not only recognize the history of the land on which we stand, but also, we recognize that the Muwekma Ohlone people are alive and flourishing members of the Berkeley and broader Bay Area communities today.

To build on this verbal acknowledgment, the Center for Race and Gender pays the Shumi Land Tax as a small way to contribute to the healing of this history, the sovereignty of the Ohlone people and the preservation of their culture. 

So now to introduce Professor Giuliana Perrone.

She is an Associate Professor in the History Department at the University of California at Santa Barbara. Her research considers the history of slavery and race in North America,  American social legal history, the history of the Civil War and Reconstruction, and the development of American political institutions. 

She is the author of “Nothing More Than Freedom:  The failure of Abolition in American Law”, published by Cambridge University Press in 2023, as well as articles and journals such as “Slavery and Abolition”  in Law and History Review

We are so thrilled that Giuliana Perrone is with us. We will be continuing this series with other speakers including Julie Stone Peters, Vicki Bell, Marco Wan, Renisa, Mawani and K-Sue Park. The next several Thursdays, so we hope to see all of you again.

Professor Perrone’s presentation will be followed by a brief question and answer period will conclude this. The public portion of this event with refreshments around 11 o’clock.

So without further ado, Professor Giuliana Perrone. 



So what Brian did not tell you is that I got my PhD here and he was on my committee. And so this is a very strange experience. It's very much feels like coming home. I I will refrain from saying how many years ago that was for, for everyone's sake. But in some ways, it feels like I've never left and just walk in the building is like Oh yeah. On it.

So I guess I'll, I I will go ahead and get started. I just want to thank you all for being here and thank you all to the Center for Race and Gender and and for for arranging my visit.

Again it's it was it's just an absolute pleasure to be here and you all are the first group I've talked to since the book came out so I couldn't think of no place better to do this actually, for the first time. 

So I began this book, this project with a very simple question while I was a graduate student, why were there so many cases related to slavery that were decided after emancipation? Why? Why did these things exist?

And I asked Professor Robin Einhorn and she responded, “I don't know. You tell me.” And that is the short version of how a student training to be a historian of the 20th century became a scholar of US slavery and abolition, attempting to explain slavery, survival in American life and law. 

So nothing more than freedom is the ultimate expression of that transformation. My answer to why there were so many cases related to slavery that has after it supposedly has ended, and it examines everyday legal disputes to show how and where aspects of slavery survived emancipation. 

Between December of 1865, when the 13th Amendment became a part of the United States Constitution and the formal end of reconstruction in 1877, supreme courts and former slave states, which is where slavery had been legal at the outbreak at the time, af the outbreak of the Civil War, decided around 700 cases related to slavery.

And and I actually built a database and did the the Berkeley Empirical Legal studies program in part to help me think through how to do this. To do this work and it was a very low tech database. I want to be very clear. Like this was nothing, you know, but it was a way to organize and I still go back to. It from time to time. 

I rewrote the thing like three times. Full disclosure. And ultimately I came to conclude that the rulings in private law cases ultimately and fundamentally undermine racial equality and reinscribe the vestiges of slavery into American law.

Abolition failed in post-bell and southern courtrooms and litigation related to contracts, family law, estates and property not just or only in decisions related to criminal law or directly related to civil rights. 

I focused my attention on the contingencies for abolition during Reconstruction and explore the unappreciated ways that private law between individuals interacted with constitutional interpretation in order to limit the possibilities those amendments would ultimately have. 

And I contend that the promises of reconstruction have yet to be fulfilled, because abolition remains incomplete. And throughout the Reconstruction Era, the stakes of judicial rulings were well understood by the judges who wrote them, and by lawyers and litigants as well. 

A robust debate emerged among judges about what the end of slavery and substantial constitutional change meant for the law and some unlikely judges distinguished themselves in this debate. They had been in slavers, but nevertheless came to believe that slavery violated natural law and had only been legal at all because of statute, right? Positive law.

To them the 13th Amendment required that all of the trappings of slavery, everything that had allowed it to exist and shaped that existence, had to be completely eradicated so that formerly enslaved people could. And this is in their terms, have their natural rights to liberty restored. And ultimately enjoy equal citizenship.

And surprisingly, this position shared a great deal with the definition of abolition that W.E.B. Du Bois offered in Black Creek Construction in 1935.

Which I will say Bryan was the first one who actually assigned that book to me, like the whole thing, the History Department expects you to read it, you actually assigned it. 

Which abolitionists have built on this definition ever since? Right. Angela Davis, for example, talks extensively about this.

And in in that he, Du Bois rights, the abolition of slavery meant not simply abolition of legal ownership of the slave. It meant the uplift of slaves and their eventual incorporation into the body, civil politic and social of the United States. 

So from very different positions, these newly anti-slavery judges saw abolition in much the same way that Du Bois would later articulate that emancipation from bondage was not enough and was also not abolition. True abolition required, remaking law and society in ways that both dismantled slaveries vestiges and the construction of new legal legal structures that would allow freed people to fully assume legal equality. Free from any of the lingering effects that their previous enslavement might have left behind. 

So in what follows I will illustrate how abolition, by this definition, failed in two distinct types of cases. And those of you who are in the he class have read the types of cases the chapters related to these. 

So those related to the contracts for the sale or hire of enslaved people. And those concerned with the domestic or family rights of formerly enslaved people. As I hope, will become clear, abolition did not happen in the first set of cases related to contracts, and it often could not happen in the second. Nevertheless, as more radical jurists hoped, the Nation could have gotten much closer to abolition during Reconstruction than it ultimately did, and these judges who were who were thinking in these terms knew that the failure to do the work of abolition during this critical time period would lead to unequal citizenship and very likely racial violence.

Aand in fact it was violence that promoted the violence of of the immediate post-civil war moment that prompted some of these judges to become abolitionists, or at least wanting to dismantle slavery in the first place. 

So it suits about contracts. The legal device that facilitated the economy of slavery made up the largest portion of my my archive. So about 41% of the suits that I put together collected in this database involved at least, one potentially more of these agreements. 

People who owed money claimed that. So these are contracts that had not been finished. You hadn't finished paying them off, or you wanted your money back. That they were sort of two types.

And people who owed money claimed that emancipation had nullified their agreements and refused to pay their creditors. Plaintiffs, on the other hand, insisted on enforcement strict performance that is enforcing the precise terms of the contract as it was written was out of the question because the 13th Amendment prohibited the ownership of people. But plaintiffs nevertheless sought to recover the debts they believed that were still owed to them. 

A deeply divided judicial deliberation over the enforcement of these contracts erupted as one of legal reconstruction's central battles. And I should say I did not want to, nor did I expect to write about contracts.  I don't actually care about the former enslavers who were at the the heart of the conversation. But I came to care very much about what the judicial rulings about these otherwise unimportant people meant for ultimately challenging the possibility of a much more capacious reading of the 13th Amendment

In other words, this is where the archive led me and I was I I was forced to follow. So the question before the court was did or courts, I should say, did the 13th amendment nullify the contracts for bonds people as instruments and therefore components of slavery? Or was the fact that the agreements conveyed people irrelevant to the questions about contract enforcement?

A narrow majority of judges agreed that prohibiting enforcement, either through state constitutional provision, which some states did build into their constitution, state constitutions written during the the radical period. 

Or by judicial decree, conflicted with the Constitution, the US Constitution's contract clause in Article One, section 10. At least as long as the contract at issue was made prior to emancipation.

So determining when that happened is a separate legal problem that I also write about, and I'm happy to answer questions about that. But so long as slavery was still technically legal when the contracts were made even, you know, in early 1865, for example in some places, then courts had to uphold them and force the money to continue changing hands. If you owe the money you had to pay. 

In 1872, the Supreme Court of Virginia summed up the position it would be monstrous to say that the destruction of the institution can impair or affect contracts made during the period of its legal and constitutional existence. If contracts were legally executed while slavery still existed, then antebellum contract doctrine required that postbellum courts uphold them. That is, the cost of emancipation most judges believed fell upon the party who owned the property at the time of emancipation.

But of course, judges were determining so much more than financial winners and losers. And again, that's the part I really didn't care all that much about, but they were determining actually the extent to which slavery would remain relevant and actionable in law, and most importantly of all, restrict the power of the 13th Amendment to fully eradicate it. 

The case related to the Calhoun family helps us see the logic of the majorities reasoning, its short-term effects and its long-term consequences. And obviously one of the more sensational lawsuits that I encountered precisely because the Calhouns were so famous and John C. Calhoun was such a strong supporter of slavery, you know, called a fire eater. 

So in 1850 the widow of John C. Calhoun, Floride, sold the family's Fort Hill plantation, the enslaved people who lived there and other valuable possessions to her son, Andrew P. Calhoun, for $49,000.

The enslaved property made-up the majority of the states value, which was common in the years before the war, and in order to buy the property, real chattel and personal Andrew borrowed from his mother. In 1854, he executed two separate mortgages. This is from the lawsuit itself, one for the Fort Hill plantation and the other for the 50 slaves each by its terms to secure the payment of the whole amount of the bond to Floride Calhoun.

So this kind of mortgage was typical of the era. Most contracts for enslaved people included promises to pay in installments using the property being purchased as collateral for the debt. So these so-called purchase money mortgages enabled the economy of slavery. 

In the absence of large financial institutions, which may have been mistrusted by Southerners anyway, and likely very much were, individuals financed the economy of slavery for one another. So those without sufficient cash on hand could nevertheless invest in enslaved and other property that either produced valuable commodities with their labor or appreciated overtime, while those with cash to lend made money on the interest. And this is this is how the, how slavery's economy worked. 

But when the Civil War ended in Confederate defeat and uncompensated black freedom, the estates of those like the Calhouns become instantly insolvent. And that's the the origin of these conflicts. The bulk of the value of the estate and the collateral for the loan both vanish. 

Court records state that Fort Hill, like so many other plantations, had been rendered by the result of the late Revolution to its present condition of wreck and ruin. So of course, debtors tried just about everything to save themselves. And that's again why they're in court in the first place. So Andrew Calhoun had died just before the end of the Civil War having repaid only about $9000 of the debt he owed, he was behind. 

Floride Calhoun would not allow her widowed daughter-in-law Margaret or her grandchildren to stay on the family property unless they could pay their debts to her. She didn't really like Andrew actually like. This is very obvious in in the the sort of larger literature about the the Calhouns she just doesn't really like him. But he's the oldest son and you know, OK, so. 

So she is actually looking to foreclose on her daughter-in-law and her grandchildren and boot them off the the family homestead. Hoping to prevent this from happening, Margaret Calhoun's lawyers in the South Carolina court argued that she could not be held liable for the debts on the enslaved persons that her husband had purchased in 1850 because they argued the bonds people were at the time of the of emancipation, the absolute property of the mortgagees, both by law and the terms of their agreement, the loss was the misfortune of the complainants, not the buyer.

In other words, because they were mortgaged, technically the the Floride Calhoun as originator of that mortgage is the owner and she has to absorb the loss. That's that's the case. 

The case makes its way to the South Carolina Supreme Court, where the the the tribunal determined that slaves in South Carolina when this contract was made were the legitimate subject of sale and purchase to impeach such a transaction now as illegal or against public policy, is not only to ignore the history of the state in regard to the institution, but to view the events of the past by the reflected light of the present day. 

So she.  The the land is actually foreclosed, auctioned off, and saved because the sun or the the husband of the of Calhoun's daughter, Thomas Green Clemson ponies up the money and and buys the property at auction. Anna Clemson was the favorite daughter, so this was actually exactly what Floride Calhoun wanted in the first place. But I digress. 

So in the many, many years that I have spent working on this project, I have received any number of comments from legal historians, with JD's in particular who could not figure out why I thought the enforcement of contracts for enslaved people was problematic at all. Like they just it just did not occur to them that this, that I would think this was weird. 

I thought it was really weird. Why are we still upholding for people after the 13th Amendment is supposed to have abolished slavery. At one point I received a very stern talking to by an incredulous senior scholar at the first conference I presented the work. And the the refrains usually sort of go like this. 

Well, what else were the judges going to do? Right?! 

There's a contract clause in the Constitution. There's nothing else they could have done. 

Now I have come to realize that there are many problems with this question, actually some of which relate to well if the Confederacy and the states included in it weren't actually a part of the United States, then why would it apply? And that was an argument made. 

But again, so here our present day lawyers very much making the exact same arguments that I'm reading in these cases from the 1860s and 70s. 

So in a modern analogy, we might think about it this. Way, if you buy a car using a car loan and then you crash the car. Something happens to the car. The car is destroyed. You still have to finish paying the loan for the car. 

In addition. There's an article written in the mid-1990s by a lawyer named Andrew Cole who shared the same view about upholding slavery related contracts. As this incredulous lawyer. And for those interested in such questions, this was sort of the the the scholarly word on it. It's an obscure article. Not many people are reading this, but those of us in this sort of conversation. This was this was it. 

And so at first I thought, oh, I must be wrong. I must be wrong. I must be missing something because I'm not a lawyer. Right? And so. So, you know, you go in with the imposter syndrome of here. I'm a little historian who's still a graduate student, and I don't have a JD, so I must be the one who is wrong. 

But I'm not wrong, I I am. I'm convinced that I am not wrong. 

Because the archive itself presented the argument that countered this position. Illustrating that not only a different interpretation of the problem was possible, but it was attempted. 

So in Wainwright v. Bridges, the judges of the Louisiana Supreme Court evaluated a complicated agreement made in 1860 for the purchase of enslaved people. In 1867, the court, led by former and slaver turned abolitionist Justice James Taliaferro, refused to enforce debts related to slavery. 

He believed that the end of slavery not only freed people from bondage, it also destroyed the legal support required to enforce any agreement related to slavery, he proclaimed in his opinion. The unavoidable result of emancipation was that the laws which had therefore sustained the institution of slavery and given their sanction to and enforced contracts cease to. 

The United States Constitution's Contract Clause, with which otherwise prohibited the impairment of such agreements, did not apply because the declaration of emancipation had superseded it when it inevitably demolished slavery, and with it all its surroundings. 

He explained further, we do not consider the position maintainable that the effect of emancipation was merely to produce a change in the status of the slave and not to render void contracts relating to slaves. The status of the slave could only be changed by a nulling the law that gave him that status. 

Emancipation and the existence of laws upholding slavery are incompatible. They cannot exist together.

So according to this logic, the contract could not be divorced from the purported object,  the property, that it was conveying.

Other similarly-minded judges agreed, the 13th Amendment emancipated people and also abolished slavery by annulling the laws that had regulated both the economy of slavery and the contracts used to facilitate it. 

Justice John McClure of Arkansas exposed a slight of hand required to support the upholding of contracts in the first place. He said the purpose of nullification clauses in state constitutions, which many states adopted during congressional reconstruction. He says the purpose of them was to quote, destroy the right of property and all slave contracts. Noting the logical fallacy upholding in upholding contracts for people, he continued. I am not advised that the property in a slave note is any more sacred or entitled to a higher or holier protection than the property in slaves. 

Alabama's Judge Thomas Peters emphasized the wording of the 13th Amendment, noting that it called for the destruction of the entire institution. The slave was not declared to be emancipated, but slavery was forever forbidden. The power that upheld it was withdrawn and as a consequence, the obligation of the contract is gone. 

Federal District Court Judge Henry Caldwell insisted bluntly no one can escape from the Reconstruction amendments operation by the cry of the Constitution as it was.

So by this reading, the car analogy doesn't actually work. There's no amendment that prohibits the ownership of cars. So what they're actually getting at here is. The 13th Amendment is is making these contracts and only these contracts are unenforceable because there are instruments of slavery itself. 

So one party in these contract suits who's always going to lose, right? Somebody's going to end up holding the bag. There's money that's being that that's been promised. There's money that's being exchanged and somebody's not going to get the money that they thought they were going to get. 

But the nullification of contracts saying we're not going to hear these cases at all or entertain the possibility that these contracts could be enforced would have ensured, I think, that the law no longer acknowledged property in persons or according to one judge, the claim of the master. 

So adopting this position might have laid a better foundation for the incorporation of freed people into civil society. But even if it did not, it still would have removed one aspect of slavery from law and commerce courts could not be then be used to uphold agreements related to slavery.

And this itself is a prerequisite for abolition. So by privileging contract and commercial doctrine, the majority of judges assured that those released from bondage retained some semblance of their identity as property. 

Rulings did not return people to bondage, but they failed to reject slavery or seek to destroy its economic foundations. Instead, they merely accepted that American law no longer sanctioned enslavement.

The Supreme Court ultimately agreed with the majority of state court jurists and required that contracts be enforced as long as slavery was legal when the contract was executed, cementing a narrow reading of the 13th Amendment that it really couldn't destroy all of the aspects of slavery. 

Louisiana was the only state whose ruling remained intact for a sort of basically because they did it without a constitutional provision. This was this was the ruling that they made before they changed their constitution. 

So judges made a choice to leave an element of slavery still embedded in contract law and when it came to matters related to the Black family judges for a variety of reasons tended to work harder to eradicate those legacies. 

Sometimes going to remarkable lengths to ensure legal equality for black litigants, but still, we find that some freed people were in circumstances for which the law had no remedy. In these instances, abolition or living a life free of the stain of former enslavement was not possible, or it might be possible for some members of a family and not for others. 

To be honest, this was always the part of the work that I enjoyed doing the most. It let me investigate the ways in which post emancipation law affected freed people directly, and it was. It was probably the work that was I was got most encouragement to to continue pursuing after I left and in fact, that is exactly what I did.

So after I left Berkeley, I discovered this notion of retroactive or dormant rights, which was, like, super bizarre. I called up Harry Scheiber and asked him if he knew anything about this, and he said he had never heard of it.  And I thought. That's fantastic. That is really good. That is good news for me because it was a recurrent theme in suits related to the Black family. 

This retroactive rights function to provide free people with the legal paths necessary to substantiate legitimate domestic relationships, marriages, and custody of children in particular. 

Specifically, the theory of dormant rights emerged in Louisiana in 1819 and stipulated that while slavery prevented and saved people from exercising certain rights by virtue of being enslaved, the imposition of the positive law of slavery, they nevertheless possessed them as natural rights that were serious just simply suppressed. 

By slavery's imposition resting dormant, these rights would become active and actionable as soon as the disabilities of slavery were resolved. They could apply both forward in time and backward as long as the couple continued living in a marriage, basically.

So a marriage that had taken place between two enslaved individuals could be deemed legitimate once they were free back to the moment that that marriage took place. And then any children born after this time would also be retroactively viewed as legitimate. 

Applying retroactive rights was not as doctrinally specific. It didn't come from a particular case. It was more ad hoc and involved much less intellectual underpinning than dormant rights theory. There's no concern about how slavery functioned or what natural rights had been denied, but it accomplished the same thing by granting legitimacy to relationships that formed during slavery and lasted into freedom.

And it's worth noting that except for Louisiana, all other states that had considered using retroactive rights during the antebellum period declined to do so, making it all the more interesting that judges would adopt the premise after emancipation.

And my answer for why they do this is they need something and here is that something that they can draw on that's not completely invented out of whole cloth and they don't care that it comes from a civil law tradition and are just willing to overlook that entirely because here's their answer to solve a problem. 

So for the sons of Cassius Swanson, the Alabama, Alabama courts willingness to recognize retroactive rights entitled them to inherit from their father. In Stikes v.  Swanson, the case that I think is is the best illustration of how applying retroactive rights can function in a positive way. The court considered whether or not children born to enslaved parents could be considered lawful inheritors once they became free persons, and whether or not their legitimacy depended on the validity of their parents’ marriages. 

Justice Thomas Peters wrote that the cohabitation of Cassius Swanson with with each of his two wives, one had died and he married his second wife, was undoubtedly a quasi-marriage. He did all that he could to make it legal. The impediment which prevented its legality was the slavery of the parties, and though that slavery had prevented formal legal recognition. The court believed that the union still possessed the crucial elements of a lawful marriage, including the intent of husband and wife to make it legal. And that intent proved that the marriages, according to Peters, would have been legal at common law, but for slavery and should therefore be understood as legal natural marriages, jure divino, by divine law. 

So here, natural law, God's law, which for those of you who are who are interested in this sort of thing, sort of off the table during the antebellum period, right. We're not using natural law arguments about slavery in the 1830s, 40s, 50s, but they are suddenly back in these opinions in the 1860s and 70s. 

So Peters is saying that natural law restored the former slave to his natural rights. That is, in the opinion of this case, and he condemned slavery fully by invoking these ever present present natural rights, including to marriage that slavery had artificially and immorally suppressed. And he is making a value judgment in the in the opinion,

He says, Justice Peters wrote is the law of laws and Cassius’s formerly enslaved children should not be made to suffer for a wrong committed against their mothers, their father and themselves. This would be adding wrong to wrong without any necessity to vindicate it, except perhaps an old prejudice, the basis of which is now swept away forever. 

Still this so it looks very promising, but this approach did not serve all litigants equally well. For example, the parents of Elkin Pope fought over who had rightful custody of him and their situation resulted entirely from the domestic precarity engendered by slavery itself. Records do not indicate, for example, whether Sarah Lacy and Harry Pope ever consider themselves married, but both asserted parental rights over their son Elkin. 

When Harry arranged an apprenticeship of his son so that, according to the records, he might learn the vocation of farming, Sarah protested. While enslaved, Elkin had remained with her after Harry Pope had been sold away and she insisted that this entitled her to to maintain full custody of herself of her son. So Elgin's legitimacy and Harry's paternal rights depended on the existence of a marriage between these two parents. 

But the Texas Supreme Court found no evidence of one and therefore proclaimed Elin Pope illegitimate. They wrote it is a universally recognized principle of the common law that the father of a bastard has no parental power or authority over such illegitimate offspring. And while the court entertained the application of dormant rights doctrine in this case, the necessary assent manifested by their continued cohabitation after acquiring their capacity to contract. In other words, staying married after freedom was never given by either Sarah or Harry. They had not sustained a marital union after becoming free, so they could, the court said, could not apply dormant rights. The court could not resuscitate Harry Pope's claim to parental rights, and Elkin could not be made retroactively legitimate. 

Which is actually exactly what Sarah Lacy wants. So this is the outcome that Elkins mother is quite happy to to, to have. But it comes at the expense of the other parent, Harry Pope, and it left Elkin designated as illegitimate in the eyes of the law. 

More complicated still were suits were extended networks of kin challenge. The very idea of what constituted a family, and this became one of the central features of Whiteside v. Allen.

So after Daniel Allen died in 1868, his mother, Fanny Whitesides, and other relatives took immediate possession of his real property, including a house and improvements. 

So Daniel had left left no will and Jane Allen quickly contested the acquisition of the property by his family members. She claimed to have been Daniel's wife and argued that any inheritance should pass to their children as Daniel's only rightful heirs. The relatives responded that because the couple had never lawfully wed, Jane's children were illegitimate and had no right to inherit from a reputed father. That was in their brief to the court.

So Daniels kin use their own familial relationship to bolster their claim. They believe that they are continued possession and occupation of the property was their right, as his kin based on the belief that their family as they conceived and understood it, was the only legitimate one. 

Notions of property ownership and family were connected in African American communities long before emancipation. Perhaps as Professor Dylan Penning Ross suggests, even co-constructed. So despite the fact that enslaved people could not legally own property, we know they did, and enslaved and free black Americans bequeathed and inherited property according to customary rules based on personal circumstances and concepts of ownership and community belonging that might not have mapped on to American law quite so perfectly. 

And emancipation prompted judges to consider these unwritten rules developed during slavery, when beliefs about both family and property held by black Americans clashed with American legal traditions. 

Ultimately, Daniel and Jane's children were the winners in the suit. Kentucky the Kentucky Court did not necessarily apply dormant rights to the marriages of formerly enslaved people, but it would grant retroactive legitimacy to the to the children born of those unions. It could then apply conventional rules of inheritance in the case. And in fact, that's exactly what happens. The children end up inheriting the whole property from from Daniel. We think. I think he he acquired the money from soldiers pay and that's how he got the land. 

So the court says nothing, however, about the claims of Daniel's relatives, except that their interpretation of the statute at issue could not have been led, the legislative intent and the the there's a statute claiming that the or saying that the children of formerly enslaved people could be legitimate. 

In this, Daniel Allen's mother.

Sorry. So they're saying this is not the legislative intent, because it would have denied children their primary right to inherit from their father. So here the court is recognizing will children always inherit from their father. And we're just going to slot these children into that, that role of legitimate heir.  And then we're just going to do law as we've always done, law. 

So Daniel Allen's mother and half-siblings then came face to face with the limits of abolition. Records don't indicate whether Daniel intended his children or his family members to have his property, but the records do reveal that his extended family members had paid for the improvements to the property, including the cost of building the house. And that everybody was living there together until Daniel's death.

And I'm quite certain some horrific falling out occurred, some sort of social rupture occurred between Jane Allen and the and the family members. She was accused of having a child with someone else while he was away fighting was very it was it was it was a spicy record.

So they appeared to consider it joint or heirs property that reflected the financial interests and future aspirations of a whole group of people. But American laws not designed to accommodate the complex familial relationship of enslaved or freed people and post-emancipation judges, lacked the doctrinal or statutory means, and perhaps the imagination to account for the influence of customary practices on black lives.

Instead, they only recognize traditional forms of property ownership and inheritance. They're willing to grant those to Daniel Allen's children. Again, slotting them into an existing legal paradigm but not willing to imagine a different one altogether. 

So the two types of suits I've discussed today, those related to contracts for for enslaved people, between white litigants and those related to the newly freed black family between black litigants, are hardly the source of civil rights blockbusters that we associate with defining American citizenship. 

These are private law cases that I think are rather mundane disputes between individuals. The issue of contracts, well that this is the other part of it, right. There's also a subset of these and there can't be more of them. Right? The issue of contract for a slave people would peter would peter out, there weren't going to be any more of these arrangements. 

And this, you know, the suture related to the Black family, I think have more bearing on conversations related to black rights, though not in terms of whether those rights would be granted, but rather in terms of how they could be exercised by a subset of litigants. And we know that there would be no formerly enslaved people than those who existed in 1865. So this too was a problem that overtime would resolve itself. 

And the family law cases judges do seem to have been at least somewhat concerned with resolving the problems that arose from litigants former enslavement in order to make black families equal to rights to whites.

I'm going over time, so I'm going to speed up here.

But resolutions in both types of cases have significant effect on the chances for abolition, success and laid unexpected groundwork for the abandonment of the radical vision for reconstruction, premised at the very least on realizing equal citizenship. 

So I'm going to skip this part and I'm going to go to the end. 

So the message I hope readers take from these types of cases and from the others that I I. 

Talk about in in the book is this. Abolition's failure is not a story of continuity or rupture, revolution, or backlash. It is a story of steady, sometimes willful and creative resistance to the possibility of change. And its failure must be measured not only by the open denial of rights granted to freed people, but also by the quiet insistence on upholding the legal remnants of slavery in obscure, unexpected areas of law that do not fall clearly within the bounds of federal or constitutional law. 

Abolition, that is, can never be achieved by traditional forms of civil rights litigation alone. Appealing to the promises of the reconstruction amendments are not going to provide the remedy by themselves. Instead, we must scour the American legal system for the vestiges of slavery, those that are obvious and those that masquerade as race neutral in areas of law seemingly untouched by the peculiar institution. Right? The law of contracts, somebody will say, is not actually about slavery, and yet it very much was. Only then can the construction of new and equitable structures of law and governance begin on a firm footing.