Paying Eliza: Comity, Contracts, and Critical Race Theory, or 19th Century Choice of Law Doctrine and the Validation of Antebellum Contracts for the Purchase and Sale of Human Beings


During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary outcome at least equally available. Why? And what can we learn from it? Accounting for these decisions requires more than simple charges of judicial racism or reactionary politics, even if well-founded. Prior and contemporaneous decisions sometimes took a more progressive, liberatory approach. We do better by seeking to uncover the intellectual and political pressure placed upon developing conflicts of law doctrine by the politics and the legal impedimenta of slavery. A more fine-grained approach reveals more, and (it is hoped) may contribute more, to the ongoing exploration not only of the conceptual and legal foundations of slavery, but also of reparations for slavery. The Article begins with a description of antebellum choice of law theory in the contracts area, including the public policy exception. The Article then discusses four Illinois cases in detail, Nance v. Howard (1828), Hone v. Ammons (1852), Rodney v. Illinois Central (1857), and Roundtree v. Baker (1869), each of which raises and treats choice of law issues. The opinions are analyzed from a conventional, historically-inflected doctrinal perspective, and also critically. The discussion of “comity” is then put into the context of two Illinois cases addressing the constitutionality of § 149 of the Illinois criminal code, which criminalized harboring and secreting fugitive slaves, People v. Willard (1843) and People v. Eells (1843). Finally, the Article examines Osborn v. Nicholson (1869), a Reconstruction-era federal case from the Eastern District of Illinois, in which the U.S. Supreme Court ultimately decided that non-enforcement of slave contracts was an unconstitutional “impairment of contracts.”


Civil Rights and Discrimination | Conflict of Laws | Contracts | Human Rights Law | Jurisprudence | Legal History

Date of this Version

February 2007