Abstract

Excerpted From: Brian C. Potts, A Simple Case for Slavery Reparations: Title to Slavery's Fruits Did Not Pass, 54 University of Baltimore Law Review 275 (Winter 2025) (681 Footnotes) (Full Document)

America should pay reparations for slavery. The debt is long overdue. Reparations were ripe in 1619 when pirates dragged enslaved Africans ashore at Jamestown. Instead of liberating their fellow children of God, pilgrims “bought” these Africans and held them in bondage. The debt for their labor was long overdue by 1625 when enslaved Africans began building New York City. The debt burgeoned. By 1690, all British North American colonies held enslaved Africans.

In 1776, our new nation declared as self-evident truths that all men are created equal and that their Creator gave them unalienable rights, including life, liberty, and the pursuit of happiness. Then, we the people promptly broke these promises. Through the Constitution, the Fugitive Slave Acts, Supreme Court decisions, and various compromises, America failed to see and treat all people as equal. America alienated the rights it said were unalienable and God-given. The United States “legalized” slavery.

I offer a simple argument for reparations: Slavery was a widely known horror plaguing this continent for at least 246 years, and enslaved people were entitled to the fruits of their labor. When Patsey picked cotton all day--“five hundred pounds a day was not unusual for her”--she was entitled to her labor’s fruits. Natural law demands this entitlement.

But Patsey’s enslaver and rapist, Edwin Epps, stole her work-product. Her labor’s fruits did not belong to him. He never acquired good title to these fruits. He did not own the cotton Patsey picked--Patsey did. She picked it under threat of force, without pay. By the doctrine of accession, she acquired ownership rights in the cotton. Epps forfeited any residual right he might have had to the cotton by committing a crime against humanity by enslaving Patsey. So, when Epps stole the cotton from Patsey, he had no good title to it. And however he conveyed the cotton after the theft, he could not convey better title than he had--none.

At some point, a doctrine like “buyer in the ordinary course of business” might cause good title to spring into existence in the hands of an innocent purchaser who paid value for the property, in good faith, without knowledge of the theft. This doctrine has morphed over time and across jurisdictions. But the key is that the downstream buyer claiming good title must show he paid full fair-market value in good faith, innocent of knowledge of the theft.

I argue anyone buying cotton from people like Epps during the era of slavery knew or should have known the enslaver stole it. Slavery was so rampant no one involved in the related economy could claim ignorance of it. No one dealing in the products of slavery could claim good faith. And the taint of slavery abided, unabated, as slavery’s fruits spread through America’s economy.

America is a great nation with great people, but America and its people incurred a debt for slavery. America as a nation--as a governmental entity--bears this debt for several reasons: America purported to enshrine slavery in “law.” America conspired to allow slavery. It aided and abetted slavery. It reaped the benefits of slavery. It even used enslaved labor. In addition and in the alternative, America bears the debt in a representative capacity on behalf of its people.

Confronting our history, this article calls for two steps--one modest, one bold. I call for the modest step of enacting H.R. 40: Commission to Study and Develop Reparation Proposals for African Americans Act. This Act would not grant a cent of reparations. It would merely recognize historical facts and establish a commission to research and report on slavery and related issues.

I also suggest considering a bold step: settling the debt owed to descendants of Black people enslaved in America by having the federal government, on behalf of itself and its people, apologize for slavery and pay $100,000 to every living descendant of a Black person held as a slave in America (subject to particular conditions) in exchange for forgiveness and a full and final release of all debts owed for slavery and other racial injustices up to 1900.

We had many opportunities to settle this debt. We could have resolved it, or largely resolved it, through General William Tecumseh Sherman’s Special Field Orders, No. 15, in 1865. But President Johnson crushed that hope. We failed to pay the debt, and interest mounts.

I hope to contribute several new ideas to the literature on slavery reparations. The key is that after enslavers stole the fruits of enslaved labor, title to these fruits did not vest downstream. Traditional title-cleaning doctrines did not cause title to spring into existence because slavery was so widespread and well-known that no one downstream was ignorant of the original theft. I also propose a burden-shifting approach to proving enslaved ancestry to account for the vastness of slavery in America and the major gaps in records. I also offer a perspective on slavery reparations as a reasonable, workable compromise. Perhaps the most startling proposition I advance is that cash payments for compromised, full-and-final slavery reparations would be at once enormous and earthshaking but also tenable, manageable, and feasible over a payment plan.

I hope to add some new arrows to the quiver. My argument is in several ways simpler than others. For example, some influential thinkers posit considerations like “perpetuation of Black subordination,” demonstrated by “the socioeconomic indicia of Black disadvantage in relation to whites,” as “the first predicate of a Black reparations claim.” Some arguments for reparations require that predicate. Mine doesn’t. On my argument, a rich Black person today deserves reparations as much as a poor Black person does.

What is not new in this article is the call to consider reparations for slavery. People demanded reparations early in our history. Belinda Sutton (also known as Belinda Royall), finally freed after 50 years of slavery, petitioned Massachusetts in 1783 for a pension. The Massachusetts court awarded her a pension from the estate of Isaac Royall, her enslaver. This was a rare success. Almost every other call for slavery reparations failed. Well, almost. One group did sometimes receive payments for American slavery: the enslavers who lost their emancipated “property.”

Despite early, ongoing demands for reparations, most Americans remain opposed. A University of Massachusetts Amherst/WCVB poll released in April 2021 showed that 62% of all Americans--including 90% of Republicans (members of the party founded to resist slavery)--opposed reparations for descendants of enslaved people. A YouGov poll conducted in June 2023 recorded that only 31% of Americans think the federal government should make “cash payments to Black Americans who are descendants of slaves.”

California recently completed a major step in considering reparations for slavery. Its Task Force to Study and Develop Reparation Proposals for African Americans issued its final report, “The California Reparations Report,” to the state legislature on June 29, 2023. The Report is thorough and blunt. It found that from the beginning:

America’s wealth was built by the forced labor of people from Africa and their descendants .... Colonial governments and the U.S. government at all levels allowed and participated in the exploitation, abuse, terror, and murder of people of African descent so that white people could profit ....

... Through laws allowing, promoting, and protecting enslavement, federal, state, and local governments were complicit in stealing centuries of unpaid wages from African Americans.

The Report documents the fact that “American government at all levels enabled and benefitted from the direct theft of African Americans’ labor.” The Report explains that “[t]he story of African Americans in the United States begins with stolen labor.” Further, “[t]he purpose of enslavement was to exploit the fruits of African American labor for the benefit of mostly white Americans.”

But one month after the Report, a UC Berkeley poll shows that 59% of California voters oppose and only 28% favor the Task Force’s recommendation that California “make cash payments to the descendants of enslaved Blacks ....” I hope to persuade people to reconsider.

Part II offers a glimpse of slavery’s horrors and vastness, laying the foundation for a reparations theory. Black people were enslaved in America for centuries. Slavery was widespread and well-known, including in the North. America built great wealth on the enslaved backs of Black people. America as a nation benefitted from slavery, used enslaved labor, breached the promises it made about liberty and equality, and enshrined slavery into federal “laws.” Part III sketches historical efforts at atonement for American slavery through reparations. Formerly enslaved Black people made early and repeated demands for reparations. Part IV briefly presents examples of reparations for other atrocities.

Many private individuals and organizations, local governments, and nations have paid reparations for other atrocities. These payments tend to show the justice and feasibility of slavery reparations. Part V advocates for the passage of H.R. 40, which does not grant restitution but merely establishes an investigative Commission. Part VI makes a simple case for reparations. This is the heart of the article. This is “the something that is often missing from reparations talk.” Part VII addresses common objections to reparations.

[ . . . ]

“ I tremble for my country when I reflect that God is just, that his justice cannot sleep forever. Commerce between master and slave is despotism. ”

Slavery was an open, notorious, widespread crime in America and its predecessor colonies for centuries. Enslavers robbed victims of their labor’s fruits. Enslavers did not acquire title to the goods produced by slavery . A just judge applying just laws at the scene of the crime as it unfolded would have ordered the enslaver to release his victim immediately and restore to her the fruits of her labor or pay her. But that didn’t happen.

When the enslaver conveyed the stolen goods, he did not convey better title than he had. So the receiver did not acquire title to the goods. And so on. No receiver could claim good-faith ignorance of the taint to make title spring into existence. The illegitimate wealth spread through America. This is another arrow in the quiver of arguments supporting reparations.

We can conceive of reparations as a simple matter of restoring the wealth generated by enslaved people to their descendants, who would have rightfully inherited it. America bears the burden for this debt both in its capacity as a governmental entity and in its representative capacity. All British North American colonies, all States before the Civil War, and the federal government itself were complicit in the crime of slavery . America enshrined and “ legalized” slavery in the Constitution. Thus, it is just that America bears the burden of restoring the stolen wealth.

Assistant Professor of Law, St. Thomas University | College of Law. For Maria and Lozza. I thank Professors Siegfried Wiessner, Roza Pati, John Makdisi, June Mary Zekan Makdisi, Greg Dickinson, Jade Craig, Jane Cross, Carl Circo, and Joel Walker for their helpful comments and support. I also thank Bar Sadeh and Mixa Hernandez, my research assistants. And I thank the marvelous Editors of the University of Baltimore Law Review.