"Unfreedom and Contract: African American Contract Practice and Theory during the Age of Enslavement"

Across all the slaveholding states in the US, enslaved men and women could not enter into legally enforceable contracts. In spite of this universal legal rule, however, enslaved African Americans actively participated in contractual agreements throughout the antebellum period. Enslaved people’s contracts varied in formality and complexity and included, among others, marriage contracts, labor contracts, sales, and credit agreements. These contracts did not only exist between enslaved people either—enslaved African Americans contracted with free whites and free African Americans as well. For example, two enslaved African American men in Tennessee—John and Tom—ran a successful business as barbers, an endeavor which would have generated implied-in-fact contracts between the men and all of their clients. John and Tom earned so much money in fact, that they formally loaned money to a free white man through a promissory note.
In addition to engaging in contractual practices, antebellum African Americans were also writing and theorizing about contracts. Many fugitive slave narratives and memoirs of free African Americans exhibit a practiced understanding of contract law. Furthermore, much like white nineteenth-century writers, African American authors used the language of contract to describe their subjectivity, their relationships with others, and the social order.
While scholars have explored the relationship between African Americans and freedom of contract after Emancipation, much less is known about the relationship between enslavement and contract in the United States. This paper unearths this hidden history of contract by focusing on both the contract practices and theory of enslaved African Americans. I contend that this history can shed new light on the relationship between contracts and power.