Slavery, Self-Help, and Secured Transactions

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot “breach the peace” in the process of repossession. This expansive right of self-help has spawned a $1.7 billion “asset recovery” industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history—the history of American slavery. This Article uncovers the role that slavery played in outlining the boundaries of lawful recaption and defining breach of peace. In cases involving enslaved people held as property, American courts accepted a level of violence in repossessions that the common law would not have allowed. In so doing, judges not only expanded the boundaries of self-help but also provided critical legal support for the holding in Prigg v. Pennsylvania, one of the U.S. Supreme Court’s most notorious fugitive slave cases. Understanding the influence of slavery on the doctrine of self-help repossession uncovers a forgotten moment in the development of commercial law and challenges traditional justifications for this unusual and powerful legal right.

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Introduction

On the morning of February 7, 2003, Maria Chapa loaded her new Ford Expedition with her six- and ten-year-old sons for a trip to school.[1] Because her mother-in-law’s car was parked behind hers on the driveway, she had to move it before she could pull her own vehicle out. As she was returning her mother-in-law’s keys inside the house, a tow truck driver who had been hiding around the corner drove up and, without ever leaving his truck’s cab, hooked Maria’s vehicle to his truck.[2] Within thirty seconds he drove away.[3] Eventually the tow truck driver noticed that the vehicle he was towing was running.[4] When he stopped driving to investigate he heard “a sound” from the Expedition, leading him to discover the two children in the back seat.[5] He “persuaded one of the boys to unlock the vehicle” and then drove them back to their distraught mother.[6] He was gone before the police or the boys’ father arrived.[7]

The tow truck driver had been conducting a routine repossession, authorized by § 9-609 of the Uniform Commercial Code (“U.C.C.”). That provision, which has been enacted in every state, allows lenders to seize debtors’ property—usually cars—after default when that property serves as collateral to guarantee a loan.[8] Creating a security agreement that authorizes self-help repossession is a simple process: the lender must only get a signed agreement from the debtor naming the collateral.[9] After default, there is no requirement for judicial process, and in most states the lender need not even provide notice to the debtor before it repossesses the collateral.[10]

The powerful right of repossession under the U.C.C. is unique. U.S. law generally requires those with property claims to turn to the law, rather than authorizing self-help. Banks cannot surreptitiously seize houses or forcibly remove borrowers after default; they must instead go through a foreclosure process, and in many states they cannot take possession of a house without giving the homeowner time after foreclosure to repay the amount they owe.[11] Even tenants have more protection than borrowers who sign security agreements. State law gives renters at least a few days after notice of nonpayment of rent to move out,[12] and if they refuse, landlords must undertake a judicial process and rely on law enforcement to evict them.[13] Lenders who have not established a security interest in collateral must also rely on judicial process to recover money from debtors. If the lenders prevail in court, they cannot seize the property themselves; instead, they must obtain a writ authorizing a sheriff to seize the property on their behalf.[14] American law generally provides process, even when that protection hinders the property rights of lenders and lessors.

In the secured transactions context, however, self-help repossessions like the one Maria Chapa experienced are pervasive. They fuel a $1.7 billion industry of repo specialists in the United States.[15] Hundreds of thousands of debtors, their families, and communities experience repossessions every year.[16] Such repossessions are especially common for vulnerable borrowers. So-called “buy here, pay here” dealers of used cars, for example, rely on their ability to reclaim collateral to provide loans to people with poor credit. For these car dealers, collection is a central part of business.[17] And in that business, violent confrontations commonly occur.[18] Debtors and repo agents threaten,[19] shoot,[20] and sometimes kill each other or harm innocent bystanders.[21] Repo agents have towed vehicles with debtors locked inside,[22] forced cars off highways,[23] run over debtors,[24] and engaged in lengthy high-speed car chases.[25] They also repossess a lot of cars with children in them.[26] Although courts have not always found this violence permissible, it is a natural consequence of a system that delegates property seizures to private actors with little judicial oversight.

The only check that U.S. commercial law provides on self-help is the requirement that neither a creditor nor its agent “breach the peace” during repossession. The U.C.C. does not define breach of the peace, intentionally leaving it “for continuing development by the courts.”[27] What counts as breaching the peace varies from state to state. American courts have found that repossessors breached the peace when they broke into a borrower’s property,[28] used physical intimidation,[29] misrepresented their legal standing,[30] or continued repossession attempts after strong verbal or physical contestation by borrowers.[31] On the other hand, courts have found no breach of the peace when creditors ignored less vigorous protests from debtors,[32] seized property from a borrower’s carport or driveway in the middle of the night,[33] or merely created a “chaotic scene.”[34] Some decisions are difficult to understand. Repossessions involving car chases,[35] violent threats,[36] and breaking into debtors’ buildings[37] have all been deemed permissible by courts. In Maria Chapa’s case, a Texas appellate court held that the tow truck driver had not breached the peace because there had been no objection to the repossession. According to the court’s logic, “[b]y removing an apparently unoccupied vehicle from a public street when the driver was not present, [the repo agent] reduced the likelihood of violence or other public disturbance.”[38] The court therefore accepted the driver’s assumption that the vehicle was unoccupied. The breach of the peace never happened, the court seemed to say, because the driver assumed it would not. In reaching this conclusion, the court ignored the kidnapping of Chapa’s children and the distress and significant risk of confrontation that their seizure created. It also disregarded the easily preventable nature of the tow truck driver’s mistake: he could have avoided the entire ordeal by checking Chapa’s vehicle for children. Despite its questionable logic, several courts across the United States have approvingly cited Chapa.[39]  These and other cases highlight the weak check that breach of the peace exerts on the powerful right of self-help repossession.

To justify the exceptional powers that self-help grants secured lenders, American lawyers have pointed to its roots in the common law. Highlighting self-help’s origins in the ancient right of recaption allows lawyers to naturalize the right and to justify its continued place in American jurisprudence even though it appears out of step with the substantive and procedural protections law usually provides today. The early cases and treatises on which these justifications rely, however, describe a narrow right, confined strictly by strong breach of peace standards. This right of recaption has little in common with the frequent seizures of personal property undertaken by modern lenders, nor with the permissive approach applied by courts in repossession cases. The traditional doctrinal history of self-help repossession therefore neither adequately explains the pervasiveness of modern self-help repossession nor accounts for the violence it creates.

This Article argues that cases involving the repossession of enslaved people better explain the law’s development and account for the violence it creates. Repossessions of enslaved people, who before abolition often served as collateral, resemble modern repossessions more closely than earlier recaption cases. The inherent violence of repossessions of people in a slave society also sheds light on the permissive stance of modern courts to breaches of the peace. Disputes over property rights in enslaved people forced courts to decide whether they would apply common law doctrine to arm’s-length transactions involving human beings.[40] American courts recognized some of the risks to the peace that repossession of people created, and some hesitated to extend it. Eventually, however, they accepted the risk of violence that repossession created in this context, using it to define the extensive rights possessed by enslavers. This expansion supported slavery by justifying the seizure of alleged fugitives from slavery. It also naturalized the violence of repossessions of people by classifying their repossession as an uncontroversial extension of ancient commercial and property rights.

The application of repossession to enslaved people helped redefine the common law right of recaption. Courts allowing seizures of enslaved people, even in contentious fugitive slave cases, helped pave the way for the modern law of self-help repossession that is more attentive to the perspectives of property owners than it is to the public peace. The history of the repossession of enslaved people therefore provides essential context for the United States’ uniquely powerful right of self-repossession.[41] Although it may be possible to justify the prevalence and violence of contemporary self-help repossession, lawyers cannot do so without grappling with its violent past.

The Article begins in Part I by explaining the stories lawyers tell to justify the right of self-help. These stories both (1) fail to acknowledge the limited role that recaption played in the law before the nineteenth century and (2) obscure the part slavery played in the development of secured transactions. In Part II, the Article examines the extension of the right of recaption to enslaved people. Placing the development of the American doctrine of self-help in the context of slavery challenges the traditional story of the development of self-help. Doing so also illustrates the way that slavery influenced the development of law. Slavery both increased the salience of secured transactions in personal property and led courts to establish expansive breach of peace standards. In Part III, the Article turns to Justice Story’s opinion in Prigg v. Pennsylvania (1842), the first recaption case in the U.S. Supreme Court. It shows that Story’s opinion manipulated the doctrine of self-help to support the constitutional rights of slaveholders to seize alleged fugitive slaves. In Part IV, this Article examines how authors of the U.C.C. failed to engage with self-help repossession’s application in slavery. By focusing on the ancient history of recaption—and ignoring the powerful destabilizing potential of self-help illustrated by its application to enslaved people—they codified a more violent version of self-help than the one on which they depended for justification. The Article concludes by explaining how dramatic growth in consumer borrowing has increased the importance of the right of self-help, exposing millions of people to the violence that Story and others ratified in the law of slavery.

I. A Lawyer’s History of Self-Help

The stories that scholars, judges, and lawyers tell about self-help repossession serve to justify and legitimize its extraordinary power. These stories gesture to self-help’s common law roots and occasionally, its precursors in Greek or Roman law. Despite gesturing to this earlier history, legal writers devote most of their analysis of self-help’s history to post-U.C.C. interpretations by judges in the context of repossession of secured collateral. These accounts obscure the social and economic context in which self-help developed in two ways.[42] First, the stories they tell engage little with what they acknowledge as self-help’s precursor, the common law right of recaption. They therefore miss the limited role that recaption played before the nineteenth century. Second, they fail to consider the important part that nineteenth-century legal developments played in transforming the doctrine of self-help. Even though slavery was the largest source of personal property in the United States, legal writers do not consider how sales and secured transactions of enslaved people shaped self-help.

These flawed stories deserve attention because they have proved useful to lawyers. They help to explain the virtues of the U.C.C. to law students, describe its current application to lawyers, and provide judges usable histories to include in their opinions. For each group, the stories have legitimized and naturalized the right to self-help repossession.

This Section begins by engaging with the stories that contemporary legal writers tell about secured transactions and self-help repossession. Next, it analyzes the legitimizing role these stories play in the work of scholars, teachers, and judges. Then, it examines the limitations of the stories lawyers tell, showing how the law they cite as a precursor to the modern law of repossession differed in crucial ways from the law that is imagined by modern writers, especially with regard to recaption. It concludes by placing the development of secured transactions in context and argues that the failure to account for the development of repossession in nineteenth century slave cases undermines the legitimating function lawyers rely on these stories to play.

A.      Legal Writers’ Explanations of U.C.C. Self-Help

Historical engagement is not the main aim of most modern treatments of the law of secured transactions. Modern legal writers give little detailed attention to earlier common law or nineteenth-century legal development and ignore slavery’s legal influence on the development of self-help repossession almost completely. They instead aim to explain and celebrate the U.C.C.’s innovations.  

Writers generally start by discussing the limitations of the pre-U.C.C. law and the need for legal reform.[43] They bemoan the patchwork of state commercial law they label “obscure,” complex,” “inefficient, unduly complicated, and inadequate.”[44] Some commentators detail the litany of pre-U.C.C. security devices to explain the necessity of the U.C.C.’s reforms.[45] Many argue that addressing secured transactions law was especially pressing because of the rising importance of commercial or consumer lending in the first half of the twentieth century.[46] Others begin the story further back, highlighting the importance of the nineteenth-century industrial revolution.[47] Their story is therefore also a functional one. Secured lending, legal writers maintain, serves the important purpose of reducing the risk of lending and therefore ought to be encouraged.[48] The complicated and inconsistent pre-U.C.C. law made secured lending “risky, difficult, and cumbersome.”[49] These problems necessitated work by the drafters of the U.C.C. to “modernize the state laws on commercial matters”[50] and create a “unified system in place of the hodgepodge that had grown up.”[51]

After they establish the need for the U.C.C., most writers continue by describing the genius of its originators and framers—lawyers that one hornbook labels “the greatest commercial experts in the country.”[52] Lauded for their influence,[53] “political sagacity[,] . . . persistence,” and great academic authority,[54] those responsible for the U.C.C. are acknowledged by name, even in publications aimed at students.[55] In one casebook, Karl Llewellyn, the Chief Reporter, receives the honor of having his picture printed alongside Lord Mansfield’s.[56]

The U.C.C. itself, drafted beginning in 1940 and widely adopted by the mid-1960s, receives similarly effusive praise.[57] One primer notes that “[t]he Code has been hailed as one of the great products of American law” serving as a model for other countries and “international instruments.”[58] Article 9, which governs secured transactions, receives especially effusive praise for its simplification and “rational[ization] of the law”[59] that reduced costs for both lenders and borrowers and spurred growth in commercial lending.[60] One writer suggests that it “may be the American law’s supreme response to the business needs of a continuously growing nation.” [61] Although these writers recognize that the U.C.C. was built on preexisting law, their stories focus their reader’s attention on the development of American commercial law in the second half of the twentieth century after the U.C.C.’s enactment.[62]

The story of a creditor’s right of repossession is similarly focused on the post-U.C.C. order. Scholars and practitioners provide a set of rules derived from case law that details when creditors have breached the peace in their repossession attempts.[63] Nearly all the cases they cite took place in what one treatise writer refers to as the “underworld of consumer finance.”[64] Their examples focus on the repossession of cars. Writers walk readers through examples from clear breaches (house break-ins, assistance of uniformed law enforcement, violent confrontation) to clearly allowable actions (seizures from carports and public parking lots, mild verbal confrontation), and fill in the uncertain middle ground (open garages, misrepresentation, etc.).[65] They mention that the U.C.C. explicitly did not disturb traditional common law breach of peace standards, but they focus their descriptions on post-U.C.C. breach of peace cases, almost all of which deal with repossession of automobiles.[66]

They justify the right of self-help through the supposed benefits it offers lenders and borrowers. “Forcing the secured party to go to court in every case,” one author writes, “merely runs up costs, which in turn will be passed on to the debtor.”[67] Without the ability to repossess property, people with bad credit would essentially “be taxed to support [judicial] process.”[68] The costs of repossession are said to be comparatively small. Most debtors, they maintain, have little legitimate reason to contest repossession: “The case of true hardship is . . . a remote one.”[69]

Despite their focus on recent American case law regarding repossession of collateral, modern legal writers reference common law rights to provide a foundation and justification for modern practice. They are particularly keen to draw attention to the deep roots of self-help principles. According to one author, the U.C.C.’s right to self-help repossession is “merely a statutory embodiment of an ancient common law remedy.”[70] Others date the right back still further to “the Dark Ages,”[71] “the feudal system,”[72] or Ancient Greece and Rome.[73] From this perspective, as one treatise puts it, the U.C.C.’s self-help provision simply “codifies centuries of practice.”[74]

Although these writers reference the importance of preexisting law to “deciphering” the U.C.C., they spend little time engaging with repossession’s common law history.[75] Recent treatises and casebooks contain few references to cases before 1980, let alone from the seventeenth century. More scholarly treatments of the history of repossession provide additional information about relevant English cases and the history from which they arose, but most fail to examine the relationship between common law rights and the right of self-help repossession as embodied in the U.C.C.[76]

Even the minimal attention that other English common law receives, however, is more than most writers devote to nineteenth-century American cases.[77] Scholarly treatments of repossession’s history offer some acknowledgement of nineteenth-century law but pay little attention to the role that the era’s legal development played in shaping the doctrine of repossession.[78] This omission leaves a curious gap in most doctrinal histories. Writers pinpoint recaption as essential to the right of self-help codified in the U.C.C. but fail to trace this right as it evolved and expanded in the nineteenth century. As a result, slavery’s influence in shaping the right of self-help repossession is often ignored.[79] The exclusion of slavery’s influence from modern writers’ accounts is likely not deliberate. Nineteenth-century judges, whose opinions generally classified cases involving enslaved people alongside those that dealt with more traditional property, have obscured slavery’s influence on the law.[80] Slavery’s exclusion nevertheless makes their stories less compelling.

B.      Justifying U.C.C. Self-Help

The traditional doctrinal history of self-help repossession has not only appeared in casebooks and treaties but also in court, where it has helped to defend the right of self-help codified by the U.C.C. against due-process challenges by debtors. In both settings, the incomplete history of the development of self-help repossession has been used to justify an extraordinary right. This history therefore deserves deeper exploration.

1.       The legitimating function of histories of recaption

Writing about precedent, Anthony Kronman has argued that “the past is, for lawyers and judges, a repository not just of information but of value, with the power to confer legitimacy on actions in the present.”[81] Like precedent, writings in treatises and hornbooks provide meaningful information about the constitution of law and legal authority, showing the internal justifications and explanations adopted by current and future practitioners.[82] These stories provide moral authority that purely functional explanations do not.

Such justifications are particularly important in the context of self-help repossession of property, because it is out-of-step with modern legal norms and practices. Here, the stories lawyers tell serve three main legitimating functions. First, showing the necessity of secured transactions to the American economy makes the U.C.C.’s accommodations for secured creditors seem both inevitable and necessary.[83] References to industrialization, the rise of the retail economy, or the development of nationwide lending markets place these transactions in familiar contexts in a way that engaging with the law of slavery would not.[84] Second, highlighting the perspicacity of the U.C.C.’s drafters not only justifies its innovations but also its borrowing from common law. Chief Reporter Llewellyn and his collaborators, these materials imply, knew what they were doing when they included self-help repossession in the U.C.C. Third, by situating self-help repossession as a continuation of centuries of legal practice dating back to England, classic treatises, and the “Dark Ages,” treatise writers naturalize a right that might seem more threatening as a recent innovation. That the right as described by these writers has survived for hundreds of years without greatly disturbing government or judicial process suggests that it poses little risk moving forward. The accrual of citations over hundreds of years strengthens the power of such conclusions for future lawyers as does the eminence of the jurists who wrote and edited these treatises.[85] The legal profession, steeped in a reverence for traditions, is primed to see these connections.[86]

Self-help repossession from this perspective does not appear to be something devised by shady lenders to take advantage of unfortunate consumers but rather to be a logical response to situations in which judicial procedure would be cumbersome or inefficient. The legitimating role of these stories helps to explain why modern treatise writers hardly engage with the “centuries” of precedent that they contend undergirds the history of repossession. The stories alone sufficiently serve their purposes. This also explains why they pay little attention to nineteenth-century American law. Reference to common law stories serves the legitimating role they need. Other precedential purposes—increasing the predictability, integrity, and accuracy of legal decisions—can be accomplished by citing the most recent cases on which the treatise writers provide more details.[87] Discussion of the nineteenth century is therefore excluded, despite it being the period in which secured transactions became widely accepted by American courts and in which the right of recaption was extended to collateral after default.

2.       State Action

The legitimating stories lawyers tell take on additional weight because they have not only been used to justify the importance of self-help to law students and lawyers but also served to defend the U.C.C.’s codification of self-help in court. After the U.C.C. was enacted, its self-help provisions faced legal challenges from borrowers who argued that the “summary repossession” that self-help authorized “constitute[d] a taking without due process of law” under § 1983.[88] These challenges came in an era of expanding due process rights, in which courts had significantly heightened procedural requirements for prejudgment deprivation of property.[89] To establish that repossession without judicial process violated due process rights, litigants had to prove that such repossessions involved action under color of law.[90] Their legal theory was that a state’s enactment of the U.C.C. established state policy that authorized and encouraged self-help repossession after default. Agreements authorizing repossession were “merely an embodiment of that policy” and therefore “were made ‘under color of state law.’”[91] At the time, such arguments were plausible. In Reitman v. Mulkey, the U.S. Supreme Court held that a California constitutional provision that prohibited restrictions on an individual’s right to sell or rent property violated the Equal Protection Clause. The court reasoned that since the provision was designed to overturn statutes banning discrimination in housing rentals and sales, it constituted state action encouraging discrimination by individuals.[92]

Across the country, debtors relied on Reitman to bring analogous challenges to state enactments of the self-help provision of the U.C.C. They argued that states that had enacted the self-help provision encouraged the seizure of property without due process. In response, scholars and advocates urged courts to recognize the supposed long history of self-help. Soia Mentschikoff, a law professor at the University of Chicago and the assistant chief reporter of the U.C.C., responded to the challenges in a law review article arguing that “[p]eaceful repossession and private disposition of collateral after default [was] a remedy of ancient and honorable lineage.”[93] Because “these rights were of ancient origin,” they were “not new rights conferred by the Code” and therefore would not fall afoul of the state-action doctrine.[94] Other scholars joined the effort to preserve the right of self-help by writing histories and providing policy justifications.[95] The Permanent Editorial Board for the Uniform Commercial Code also filed an amicus brief, offering historical and policy justifications for Article 9’s repossession provisions.[96]

These judicial histories did not seriously engage with the nineteenth-century law of self-help, much less slavery’s influence on its development. Nonetheless, judges echoed these arguments in their decisions upholding the constitutionality of self-help repossession.[97] The Florida Supreme Court, for example, cited Sir William Blackstone’s eighteenth-century treatise, Commentaries on the Laws of England, to argue that Florida’s enactment of the U.C.C. self-help provision was “no more than a codification or restatement of a common law right and a contract right recognized long before” the act was passed.[98] New Jersey’s Supreme Court reached a similar conclusion: “far from being a right created (and thus the fruit of ‘state action’),” the right of repossession was a “centuries”-old right with “roots deep in the common law.”[99] The supreme courts in Oklahoma and Kansas agreed, citing the same “roots deep in the common law.”[100] The Second Circuit Court of Appeals found that a similar common law right had existed in Connecticut.[101] Even courts that did not find the right’s history dispositive still pointed to it in their decisions.[102] After the state action question was settled, some courts continued to reference the long history of recaption to provide background for their breach of peace decisions.[103]

That courts and legal writers continued to rely on an incomplete history of self-help in their writing, even after the due process issues were settled, suggests the important legitimating role that such doctrinal histories continued to play. It is therefore important to interrogate the histories that scholars tell about the “ancient” right of recaption.

C.      The Right of Recaption

A closer look at the history of recaption suggests that it offers poor support for the legitimizing purposes it serves for lawyers and judges. Recaption was a narrow right that could only be exercised in a strictly limited set of situations and therefore offers weak precedent for the expansive understanding of self-help demonstrated by courts interpreting the U.C.C. The exclusion of the history of slavery in these developmental stories is therefore unwarranted.

Unlike the right of self-help repossession, which holds a significant place in American economic life primarily because of its role in secured lending, the common law right of recaption was rarely relevant. It applied not to repossession after default but only to other types of wrongful possessions, often resulting from theft. Although scholars have identified earlier precursors in Rome and Greece, common law treatises trace legal acceptance of self-help seizure of personal property to King’s Bench cases old enough to have been recorded in law French.[104] Writers traditionally cite Higgins & Andrewes (1619) as the first case illustrating the right. In Higgins, the Court of the King’s Bench found it permissible for the defendant to enter a neighbor’s land to seize the property (trees from an orchard) that the neighbor had stolen from him.[105] This contrasted with the court’s other opinions, which held that entering another’s land was generally impermissible.[106] Sir Edward Coke’s Institutes, initially published from 1628–44, provides further early support for the courts’ acknowledgement of recaption in the seventeenth century. Like the case reports of Higgins and other relevant decisions, Coke detailed the right of owners of property to retake stolen goods from thieves.[107] Sir Matthew Hale’s Analysis of the Law (1716) described the same right, arguing that the common law allowed for one to “lawfully retake” property that had been taken “wrongfully” as long as the retaking was not done “riotously.”[108] Williams Hawkins, in a treatise on criminal law published the same year, also explained the right of recaption, writing that the “taking of one’s own goods again . . . is no offence at all.”[109] These early common law sources all defined recaption narrowly in terms of retaking wrongfully seized property, and their explanations have little connection to the modern law of self-help seizures of property after default.

Sir William Blackstone, whose Commentaries on the Laws of England (1768) forms the basis for most later accounts, also outlined clear limits on the right of recaption. Blackstone analyzed the right of recaption in the beginning of his section on private wrongs, immediately following his description of self-defense.[110] His analysis suggested that the law had changed little since its inception. Like the earlier writers whom he cited, Blackstone noted that recaption was available in response to wrongs committed by another person—“when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant.”[111] This seizure gave the wronged party the right to “retake them, wherever he happens to find them” as long as he did not proceed “in a riotous manner, or attended with a breach of the peace.”[112] According to Blackstone, recaption supplemented to remedies offered by the courts, when they might be too slow.[113] It allowed the wronged party to seize the opportunity to return his property, family, or servant before the wrongdoer could “convey[],” “conceal[],” or “destroy[]” them.[114]

Despite its limited applicability, Blackstone said that courts only reluctantly embraced the right to recaption because of the dangers it posed. Protecting property did not justify using “force or terror.”[115] It was impermissible to “break[] open a private stable,” “enter[] grounds of a third person,” or do anything else that would “occasion strife and bodily contention, or endanger the peace of society.”[116] In Blackstone’s reading of the common law, the “public peace” was a “superior consideration to any one man’s private property.”[117] Limitations of the right of self-help were therefore necessary to avoid “rever[sion] to a state of nature.”[118] Blackstone therefore drew attention not only to the risks of repossession to the property holder and the repossessor but also to the broader community and society.

Blackstone’s Commentaries were widely republished in both England and the United States, often in edited and updated editions by other eminent jurists. Although they were sometimes published decades after Blackstone’s work first appeared, these editions of Blackstone offer little additional information about recaption, suggesting the relatively insignificant place of recaption in the law. St. George Tucker’s 1803 edition of the Commentaries was the most successful early edition in the United States, in part because of its addition of more than one thousand footnotes. Yet, it added no notes to Blackstone’s discussions of recaption.[119] Joseph Chitty, a London-based lawyer, offered only one additional citation in his 1832 edition of the Commentaries: a reference to a 1798 case explaining that physical contact in recaption could only be gentle.[120] Later treatise writers in the United States and United Kingdom mostly adopted Blackstone’s account.[121] They too offered little additional authority, instead primarily relying on citations to Blackstone and Coke to support their descriptions of the law and its limits.[122]

The common law right of recaption as recounted by Blackstone, Coke, and others is significantly narrower than the one enabled by the U.C.C. It therefore provides thin support for the supposedly “centuries” of precedent that legal writers point to in justifying U.C.C. self-help. First, recaption applied only to situations in which someone (usually a thief) had wrongful possession of another person’s property and not to collateral after default. This greatly reduced its relevance, especially in a period where personal property constituted a relatively small percentage of property value.[123] Second, Blackstone’s discussion of breach of the peace emphasized peace over property and offered little leeway for repossessors to threaten the peace, especially when compared to what modern judges accept in U.C.C. self-help repossessions. Blackstone would likely have not accepted the incursion into a third party’s property that the towing of Maria Chapa’s car represented. Nor would he have likely accepted the risks to the communal peace that frequent repossessions of cars represent.

The limitations on self-help are particularly noteworthy in context. Even today, seizing property through legal process can be slow and expensive.[124] In the seventeenth, eighteenth, and early nineteenth centuries, collection would sometimes have been even more difficult. In addition to negotiating a time consuming (and highly technical) legal process, someone seeking compensation for the loss of property would also have had to depend on slow and expensive forms of transportation and communication.[125] Sheriffs also had limited resources and could not be counted on to act promptly. In this context, the strict standards for breach of the peace described by Blackstone and adopted by others seem likely to have frequently prevented the recovery of property. These high standards are also noteworthy because of the common use of other kinds of self-help at the time. The law authorized landlords, for example, to personally seize the property of a tenant to satisfy unpaid rent.[126] That common law treatise writers strictly limited recaption, even in a legal environment open to self-help in other arenas, suggests the dangers they associated with its use.

Contrary to the assertions of modern scholars and judges, the common law right of recaption appears to be only distantly related to the doctrine of self-help repossession in the U.C.C. and therefore offers poor historical precedent for the expansive vision of repossession codified by the U.C.C. Understanding self-help’s origins therefore requires turning attention to legal developments in the nineteenth century that transformed the narrow right of recaption into the more capacious right of self-help repossession. Slavery was at the center of these developments.

II. The Missing History of Slavery

Like most legal scholars, those who have explained the history of self-help rarely look beyond traditional legal sources to the broader context in which that law was made.[127] This means that they miss the significant role that American slavery played in defining the boundaries of repossession in the United States. This Section highlights how slavery shaped that development both by raising the salience of transactions in personal property and by expanding the level of acceptable violence in repossessions. The treatment of enslaved people as a valuable form of property and the use of enslaved people as collateral in secured transactions forced courts to answer difficult questions about the permissibility of repossession that have more relevance for the modern law of secured transactions than application of the traditional right of recaption.

A.      Transactions in People

It should not surprise us that slavery shaped the law of secured transactions. Slavery was an enormous economic institution. Enslaved people were the largest category of personal property in the United States—their market value constituted approximately 20 percent of wealth in the United States.[128] Slavery had major economic impacts outside the South. Northern businesses served many roles in the slave economy including supplying plantation necessities,[129] trading slave-grown commodities from the Caribbean,[130] transporting enslaved people in the domestic trade,[131] selling luxuries for Southern planter consumption,[132] exporting cotton,[133] and insuring the lives of enslaved people.[134] Powerful banks in London financed plantation agriculture,[135] and exports of cotton produced from slave plantations in the United States helped fuel industrialization on a global scale.[136] By the 1860s, the market value of enslaved people in the U.S. was significantly higher than the combined values of all manufacturing and railroads in the country.[137]

The market value of enslaved people was not the only reason they were legally and economically significant; it was also that in most jurisdictions they were classified as chattel, what lawyers today would refer to as personal property.[138] Before the late eighteenth and early nineteenth century, land had been the primary source of wealth in the common law world. Personal property was comparatively insignificant. Enslaved people were one of the first significant sources of wealth in personal property. Their market value became an increasingly large percentage of Southern (and national) capital in the decades leading up to the Civil War.[139]

This economic influence generated hundreds of thousands of transactions and tens of thousands of legal disputes that asked judges to answer sometimes novel questions related to the law of personal property.[140] Such disputes were particularly formative in commercial law. Slave cases raised issues of agreement, warranty, remedy, bailment, and other commercial topics.[141] Because in most cases “judges behaved as though the object in the sale mattered not at all,”[142] the rules applied to and designed for the governance of property in enslaved people created precedent for the sale, borrowing, and lending of personal property more generally.[143] As a result, slavery played a significant role in the “intellectual transformation” that accompanied the rising importance of personal property to economic and legal life more generally.[144]

The growing importance of lending backed by personal property was a substantial part of this transformation. Scholars have shown that courts were initially reluctant to embrace security interests in personal property.[145] In the early nineteenth century, however, U.S. courts began to accept the use of chattel mortgages and conditional sales as two alternative ways for commercial actors to establish non-possessory security interests in personal property.[146] Loans for enslaved people were an early and frequent part of these transformations, and the importance of enslaved people to financial transaction persisted until abolition. Historian Bonnie Martin estimates that more than 25 percent of enslaved people living in one parish in Louisiana served as collateral in a five-year period.[147] She also concludes that the money generated by loans secured by enslaved collateral in Louisiana likely exceeded the amount of bank capital in the entire state.[148] Because of their prevalence and economic significance, secured transactions in enslaved people helped to define the burgeoning field.

The law developed to support these transactions. Southern states passed recording statutes to require that, like mortgages for real property, security interests in enslaved people be officially registered with the state.[149] Rather than treating enslaved people as an exception to normal rules governing transactions, American lawyers generally applied and extended these traditional rules to slave commerce. The fundamental structure of borrowing using enslaved people as collateral resembled lending arrangements that remain in use today. Just as a car buyer borrows money to purchase a car and then grants his lender the right to repossess his car if he defaults, enslavers purchased enslaved people on credit, granting a security interest to the seller that allowed him to seize the enslaved person in case of default.[150] Enslavers also used the value of the enslaved people they owned as collateral for loans for other purposes, including for the purchase of other enslaved people, just as a business owner today might use his business’s property as collateral for a loan.[151]

The scope of the practices enabled by these laws had a significant presence in American law. One count of appellate opinions in a selection of Southern courts before 1830 found that 84 percent of secured transactions cases published in appellate reporters involved enslaved people as collateral.[152] Nineteenth-century treatises also testify to the significance of cases involving enslaved people. Leonard Jones’s leading treatise on the law of secured transactions in personal property, first published in 1881, reflected this trend. It treated cases involving enslaved people as valid sources of law for security interests involving non-human property.[153] For example, Jones discussed several cases involving enslaved people to illustrate the proper procedures for the establishment of security interests.[154] He also relied on a case involving enslaved people to describe the procedure for recovering a debt from a borrower after the sale of the collateral.[155] Similar citation patterns can be found in other treatises as well.[156]

By my count, nearly half of the reported American recaption cases recorded before abolition involved enslaved people. Even after abolition, American courts continued to rely on law derived from cases involving enslaved people to explicate the law of repossession.[157]

Southern opinions testify to the destabilizing force that the law of repossession could play in the lives of the enslaved. The transaction described in Brown v. Lipscomb, an 1839 Alabama case, began in 1829 with a purchase-money loan for an enslaved person, who remained unnamed in the Alabama Supreme Court’s opinion.[158] By the time the case ended up in court ten years later, the rights to the loan had been transferred to another creditor, who subsequently executed a deed of trust to yet another person in payment for a debt.[159] Eventually that creditor took possession of the enslaved person, but his possession was challenged by another man who claimed that he held rights to the enslaved person.[160] This case illustrates not only the complex structure of the transactions that the law enabled but also what being transformed by the law into collateral meant for an enslaved person. The accessibility of loans increased the number of people who could purchase enslaved people and thereby tear them away from family and friends.[161] The possibility of default only increased the odds that someone like the enslaved person at issue in Brown v. Lipscomb would experience such upheavals multiple times in his life.[162] The rules of recaption meant that these transactions might not only lead to sale but also to repossession, perhaps at gunpoint in the middle of the night.

Slavery’s economic importance and significant presence in nineteenth-century commercial law suggests that its exclusion from most of the stories that lawyers tell about secured transactions and self-help is unjustified. Even legal scholars who recognize slavery’s presence have not tracked the way that slavery’s unique attributes shaped the law in persistent ways.[163] In the self-help context, this absence is especially notable because of the tenuous connections between the common law of recaption and modern secured transactions. Whereas common rules of recaption, rooted in the recovery of stolen goods in the seventeenth century, appear to have little relation to a law of repossession steeped in the sale and lending of personal property, the law applied to transactions in enslaved people is much more closely related to modern secured transactions law.

B.      Repossession of Enslaved People

The rising importance of personal property, driven in significant part by commerce in enslaved people, increased the salience of the rules of repossession in the first half of the nineteenth century. Courts developed these rules in a slave society in which an underlying potential for violence inherent in commerce involving human property shaped the meaning of standards like “breach of the peace.” In recaption cases, judges were thus forced to balance concerns over the risks repossessing people might pose for a society premised on slaveholding, with the benefits that self-help repossession offered for some property holders. They ultimately concluded that recaption should be applied to enslaved people, setting a baseline of violence that allowed recaption to support the seizure of enslaved people who had fled slavery to seek freedom in the North.

The importance of repossession grew in the nineteenth century for two main reasons. First, because judges extended the right of recaption to any wrongful possession, it came up not only in disputes related to theft but also in a growing number of business controversies in which commercial actors maintained that contract breach justified their retaking of property. Second, and more significantly, courts extended the right of repossession to cover post-default seizure by secured creditors. The theory was that a default by a borrower vested “an absolute title” to the collateral in the secured lender.[164] Because the borrower had given “implied license” to enter their property when they assented to the security agreement, the creditor therefore had a right to possess and control the property.[165] Under both sets of circumstances, courts held that recaption was inappropriate if it “threaten[ed] a breach of the peace.”[166] A creditor could therefore only retake property “in a reasonable and proper manner and without force or violence.”[167] The mere presence of a sheriff was enough to breach the peace, because it improperly suggested that the repossession took place through official process.

Although courts espoused adherence to the strict breach-of-peace standards Blackstone had identified in the common law, their extension of the right of recaption to enslaved people demonstrated acceptance of a significantly higher level of violence than Blackstone said was allowed under the common law. Commerce in people was inherently risky. In addition to involving the usual risks created by the seizure of valuable property, recaption of enslaved people incorporated the violence inherent in the slave system itself.[168] Recapture of people, who might be unwillingly torn away from their friends or family, could encourage resistance on the part of the enslaved and the use of force by the repossessor. In addition, because the control of enslaved people played such an important role in the self-image of White enslavers, and because the enslaved were considered extremely valuable commodities, their repossession was likely to create additional resistance by enslavers.[169] Finally, the secret seizure of people was much more likely to draw attention than the taking of an inanimate object. All these risks took place in a society in which fears of Black insurrection circulated widely.[170] And these risks could easily spill over to people who had not been party to the original transaction. In other contexts, courts recognized the risk of destabilization, working to maintain the violent domination possessed by those currently in possession of enslaved people. North Carolina Supreme Court Justice Thomas Ruffin captured this sentiment in his decision in State v. Mann: because “obedience” of the enslaved was “the consequence only of uncontrolled authority over the body,” Ruffin wrote that “public tranquility” depended on their “subordination.”[171]

In the recaption context, however, most courts accepted the risk of violence and destabilization that seizures of enslaved people might cause. In 1850, for example, the Alabama Supreme Court dealt with a case involving a dispute over the hiring of “Philip, Charity, Mike, Bill, Boy, Ol, Fann and Price.”[172] At the time, such arrangements allowed enslavers to essentially rent out the enslaved people they owned to work for others.[173] In that case, the man who had hired the group out took them away before his contract with the hirer had ended. In response, the hirer “pursued him and forcibly reclaimed them.”[174] The Alabama court elided the inherent violence in the recaption of enslaved people. Even though Philip, Charity, Mike Bill, Boy, Ol, Fann, and Prince had been “forcibly reclaimed,” the court asserted that it did “not appear that any actual violence was done, or any more force was used than was necessary to reclaim the property.”[175] The court seemed to imply that the baseline violence of slavery was not enough to breach the peace, and it papered over the violence that had happened because it was “necessary.” Its legal analysis followed this assumption. Citing Blackstone’s Commentaries for authority, the court concluded that the defendant “had the right of recaption” and could not “be held responsible either civilly or criminally, unless . . . he was guilty of an actual breach of the peace.”[176] In this case he had merely “reclaimed” his property.[177] The Alabama court kept Blackstone’s wording while expanding the right of repossession beyond the risk averse bounds in which Blackstone had cabined it.

This matter-of-fact approach to the extension of self-help repossession to enslaved people appeared in other states as well. The Kentucky Court of Appeals held that enslaved people, like other “goods” that had been “wrongly dispossessed,” could be “retaken” anywhere they could be found.[178] In that case the court took issue not with the right to recaption for an enslaved man but with the injury to the White possessor of that enslaved man that occurred during the recaption.[179] Likewise, the Court of Appeals of South Carolina found nothing objectionable about a repossession attempt in which an enslaver, armed and under cover of night, surreptitiously seized a group of enslaved people he claimed to own.[180] Courts in these cases ostensibly required would-be repossessors not to breach the peace. As the Court of Appeals of Kentucky put it, “[T]he recaption must not be in a riotous or forcible manner.”[181] This was not an especially restrictive standard, however. Even repossession of “mortgaged negroes” in the middle of the night was permissible.[182] Most Southern courts did not worry about the additional risks that repossession of enslaved people posed to enslaved people or to the society that depended on their subordination.

The acceptance of recaption extended to creditors’ post-default seizures of enslaved people who served as collateral for loans. Judges offered justifications for self-help in slave cases that sounded like the justifications in other secured transactions cases. For example, in Wolf v. O’Farrel, an 1812 case from the Constitutional Court of Appeals of South Carolina, the court held that a debtor’s default created an “absolute” right in the property for the secured creditor and consequently, “the right of remedy” to “take it out of the possession of the mortgagor himself.”[183] One judge on that court said that the right of the secured creditor on default “to seize the negroes, or other chattels” and resell them had existed “from time immemorial.”[184] The Virginia Supreme Court, in Faulkners’ Adm’x v. Brockenburgh, also provided support for a secured creditor’s right to seize collateral, holding that even a late payment was not enough to save a debtor from a default that gave a secured creditor the right to “take possession” of “the slave” at issue.[185] By applying recaption to collateral after default, Southern courts dramatically expanded the scope of the right and the risk of violence it imposed.

Although most appellate courts applied the right of recaption to enslaved people with little consideration of its potentially destabilizing effects, at least one Southern court explicitly grappled with these risks. Cases from the Tennessee Supreme Court show that, even in the nineteenth century, judges noticed that extending the right of recaption to enslaved people increased the risk of violence beyond what the common law had allowed. In 1807, the Tennessee Supreme Court upheld an indictment against a man who, while armed, accosted an enslaved woman walking back from a spring, telling her that “she was his property, and that she must go home with him” and then forcing her to accompany him to his home.[186] The defendant’s counsel cited Blackstone’s Commentaries and argued that the defendant was protected by his right to recaption under the common law. The court, however, found that the right of recaption did not apply because another person also claimed to rightfully own the enslaved woman.[187] The defendant, the court admonished, should have turned to the law for recourse; private action, “using any kind of force; either actual or implied” was inappropriate.[188]

The court justified its holding by explaining the risks recaption posed to individual enslavers and to a slave society that depended on Black subordination. It referenced an early South Carolina case that explained the risks of rendering property in enslaved people “insecure.”[189] In that case the South Carolina court maintained that because of the “great numbers of negroes . . . brought hither from other states,” allowing self-help created the possibility that an “honest purchaser . . . would be left almost without remedy” if non-residents seized the people he enslaved and transported them across state lines.[190] The Tennessee court’s opinion suggested, however, that the risks of recaption were more than financial. “It is of the first moment,” it wrote, “that this species of property should be inviolably guarded from the control of others than their master.”[191] In referencing the importance of firmly established control of enslaved people, the court hinted at the argument that Thomas Ruffin would later make more fully in State v. Mann.[192] Because Southern society depended on coerced Black labor, and because control of this labor depended on submission to an enslaver, any threat of disturbance to this control had to be “inviolably guarded.”

The circumstances surrounding the 1807 Tennessee case likely heightened the court’s worries. The defendant had come from out of town with two other men and accosted the enslaved woman with “horseman’s pistols” and, according to counsel, she had “seemed opposed to going” with him.[193] The potential for violence if such encounters were encouraged by law was immense. As the court appeared to have realized, allowing recaption to apply to enslaved people would expand the common law right beyond its traditional bounds, threatening to “endanger the peace of society” that Blackstone had said the law prioritized.

The Tennessee Supreme Court recognized these risks in other opinions as well. In 1825 it considered a case arising from the interaction of adverse possession and recaption.[194] Under English common law, it was possible for someone whose property had been adversely possessed and therefore who had no ownership claim cognizable in court to lawfully seize that property through peaceable recaption. Such a common law rule, the Tennessee court concluded, could not automatically be extended to “the slave property of the slaveholding States.”[195] Instead, it was the duty of American courts to “fix rules of their own.”[196] The court concluded that following English precedent in this case was too risky in a slave society: “Nothing could be imagined much more dangerous to the repose of society, than the recognition of the principle, that although the remedy was barred, the right of recaption existed, in cases of dormant claims to slaves.”[197] Recaption in these cases was “certain” to “result in personal violence of the most dangerous character.”[198] The court therefore applied the law of adverse possession to the case because it better protected the stability of slavery and limited the possibility of violence recaption posed.[199] Here, the court seemed to recognize the broader risk to the peace that repossessions of enslaved people might cause.

The Tennessee Supreme Court applied this reasoning in subsequent cases, including one in which a man who claimed ownership in a “certain negro woman, slave for life, named Peggy” was indicted under a statute that forbade the “enticing a slave from his owner’s service.”[200] The indictment alleged that he “enticed, persuaded, and absented” Peggy from her hirer.[201] Again, the defendant claimed that a right of recaption authorized him to seize the enslaved woman to which he claimed title. And again, the Tennessee court found that “[t]he danger of this mode of asserting title to slave property” made recaption inapplicable in such situations and thus “formed no defence” for the defendant.[202] The lawyer for the plaintiff in the case provided further insight into the risks of recaption in this context. “Negroes,” the lawyer argued, were “a peculiar species of property,” which was why the legislature had passed the law against seducing them.[203] To allow a party with “good title to a negro” to “entice or steal it away” “would be an awful precedent to set in society, and of very immoral tendency.”[204] It would “lead to the most shameful abuses, and often end in bloodshed.”[205] Someone who claimed ownership therefore should “resort to the law and not to stratagem and theft.”[206] In 1837, the Tennessee Supreme Court still recognized the distinction between recaption of enslaved people and other property, noting that “possession of a slave” was “indictable under circumstances where the taking possession of other property would not be.”[207]

Although the Tennessee court’s terse opinions in these cases did not explicitly follow the classic common law approach of determining whether the party repossessing property had breached the peace, their decisions imply that the court believed that seizures of enslaved people were per se breaches of the peace. These opinions show that judges deeply embedded in a slave society could nevertheless recognize the violent potential of applying repossession to enslaved people. Their approach illustrates that, even if other Southern courts at the time did not admit it, extending the right of recaption to enslaved people meant expanding the right beyond its common law roots. Whereas other courts were willing to ignore this expansion, allowing them to treat slave commerce as they did other commercial exchanges, Tennessee courts recognized the greater risks that seizures of enslaved people posed.

This is not to say that the Tennessee courts established a gentler version of the commercial law of slavery. Although requiring would-be repossessors to rely on judicial process may have prevented or delayed some seizures of enslaved people, Tennessee courts’ main concerns were with enslavers and the stability of slave society rather than with the enslaved. This perspective offered limited acknowledgement of the humanity of the enslaved, recognizing at least that this “peculiar species of property” had the potential to protest their seizures in a way that other property did not. Nevertheless, this recognition came only because the Tennessee courts wanted to prevent such protests because of the threat they posed to a society dependent on enslaved labor.[208]

By failing to engage with the nineteenth-century history of recaption in Tennessee and elsewhere, scholars and judges therefore miss two important developments that moved self-help repossession further from its roots in the common law. First, they fail to note the dramatic expansion of the right of recaption as it began to be applied—often in cases involving enslaved people—to collateral after default. Second, they miss the issues that the expansion of the right of recaption to enslaved people presented to the public peace, issues obvious enough that even courts steeped in slavery could recognize them.

III. Recaption of Fugitive Slaves

The dangers of the expansion of the right of recaption to enslaved people became most apparent in fugitive slave cases. Violent repossessions of enslaved people threatened not only the lives of enslaved people but also the tenuous peace in a society increasingly divided by disagreements over the future of slavery. The legal legitimacy that these cases granted to the physically and mentally violent repossessions of enslaved people played an essential role in supporting the seizure of those who had allegedly fled from slavery. The most significant case applying the right of recaption to enslaved people was Prigg v. Pennsylvania, an 1842 decision authored by Justice Story that struck down Pennsylvania’s procedural protections for residents alleged to be fugitive slaves.[209] Prigg was not only a significant constitutional law case, but also the first case in the U.S. Supreme Court to discuss the recaption of personal property.[210] Understanding Prigg in its commercial law context helps to explain its constitutional law holding and highlights the legacy of violence hidden in the unexplored nineteenth-century history of repossession.

A.      Margaret Morgan’s Recaption

Margaret Morgan, the woman at the center of Prigg alleged to have been a fugitive from slavery, had lived as a free person since her birth in Maryland. Although her parents had been “released from service” by their enslaver John Ashmore, he never officially manumitted them.[211] As a result, Margaret had never received documentation of her status.[212] Margaret moved to Pennsylvania in 1832, along with her husband, a free Black man named Jerry Morgan, and her two children.[213] The family settled in York County, Pennsylvania, where Jerry had been born, and their family continued to grow.[214]

When John Ashmore, who held the legal right to enslave Margaret’s parents, died in 1837, his wife inherited his estate. She then sent a posse to seize Margaret.[215] The posse first worked through the legal system, and a constable arrested Margaret and her family at their home.[216] But when the local Justice of the Peace refused to handle the case because he did not have jurisdiction under Pennsylvania law, the posse conjured up a plan to circumvent the protections provided by Pennsylvania law. They managed to convince Margaret’s husband to head back home to prepare for a hearing on his wife and children’s freedom he expected the next day.[217] After he left, the posse seized Margaret and her children, including those who had been born free in Pennsylvania, and absconded in the night to Maryland.[218] In Maryland, a court determined that Margaret and her children were fugitive slaves. They were sold to a slave trader who intended to bring them to the Deep South, where the value of enslaved people was higher.[219] There the family members may have been separated for sale, and were likely forced to labor on a cotton or sugar plantation under brutal conditions.[220]

Margaret’s seizure was exactly the kind that Pennsylvania’s “personal liberty laws” were designed to prevent. Because of the increasing value of enslaved people in the 1820s, the rate of kidnapping of people like Margaret and her children, who had legitimate claims to freedom under Pennsylvania law, had risen.[221] Pennsylvania enacted laws that provided basic procedural protections for those accused of being fugitive slaves and criminalized seizures of people that did not accord with these standards.[222] The most recent law, passed in 1826, provided a procedure for those who alleged ownership of Black people living in Pennsylvania.[223] The act also barred self-help seizures, which had been authorized in earlier law, instead requiring those seeking alleged fugitive slaves to work through a judicial process.[224]

After Morgan’s seizure, Pennsylvania indicted the slave catchers who had seized her and her children for violating the 1826 Act, but Maryland initially refused to return them for trial.[225] The states eventually agreed to have Maryland surrender Edward Prigg, one of the slave catchers, for a jury trial and to stipulate to the facts of the case.[226] After a jury convicted Prigg, the Pennsylvania Supreme Court gave a pro forma affirmation, and the Supreme Court granted certiorari to resolve the dispute.[227] The stipulated facts ignored Margaret’s claims to freedom, focusing instead on the constitutional issues posed by the procedural protections that Pennsylvania law had provided.[228]

B.      Prigg v. Pennsylvania

In a majority opinion written by Justice Story, the Supreme Court overturned the slave catcher’s conviction and held that Pennsylvania’s personal liberty law violated the Fugitive Slave Clause of the U.S. Constitution by impermissibly impeding the return of fugitive slaves.[229] Story grounded his decision in three main claims: first, that recaption was guaranteed by the U.S. Constitution; second, that Congress had exclusive power to enforce the Fugitive Slave Clause; and third, that states could not interfere with Congress’s power to enforce the Clause.[230]

Discussion of Prigg’s influence has been shaped by the tendency of legal thinkers to see slave cases as irrelevant to the development of private law. Instead, they focus on the public law holdings and implications of the opinion, which effectively expanded federal power.[231] As H. Robert Baker has observed, the decision is “in some respects . . . still good law when it comes to understanding the boundaries of federalism, and it has been cited as such.”[232] Prigg is taught in law school constitutional law classes, not only to address the history of slavery but also to illuminate the borders and limitations of federal and state power.[233] Even today, courts cite principles of constitutional interpretation derived from Prigg in their opinions.[234]

Justice Story’s opinion, however, is as much a commercial law opinion as it is a constitutional one.[235] In Prigg, he linked the seizure of alleged fugitive slaves to what he called the “unquestionable doctrine” of recaption.[236] According to Story, the Fugitive Slave Clause “contemplate[d] the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain.”[237] Owners of enslaved people therefore had “the right to seize and repossess [slaves].”[238] For support, Story cited Blackstone’s Commentaries to describe the law of recaption, which he claimed was “universally acknowledged in all the slave-holding states.”[239] Story went on to hold that the doctrine of recaption made the Fugitive Slave Clause self-executing and therefore “require[d] no aid from legislation, state or national.”[240] Although the seven separate opinions of the justices in Prigg have created some confusion, all seven of the justices who agreed with Story’s decision to overturn the conviction of Edward Prigg for kidnapping a Black family and bringing them back to slavery in Maryland appear to have agreed with his analysis of the right of self-help.[241]

Justice McLean, the only member of the Supreme Court to dissent, noted the radical implications of Story’s argument. By saying that a state could not permissibly regulate the seizure of people within its borders, Story implicitly found that the perspective of the person being seized could not be considered when determining whether peace had been breached. An enslaver could use “all the force necessary to accomplish his object” because the law of recaption treated the person as a thing.[242] Story thus ignored that “[t]he slave, as a sensible and human being” was, even in the South, both subject to and protected by the law.[243]

Even McLean assumed that Story’s description of the law of recaption was accurate.[244] As discussed above, however, the law of self-help in slave societies was not as settled as Story claimed.[245] The Supreme Court of Tennessee, for one, had seemingly rejected the doctrine’s application to enslaved people for some of the same reasons that McLean suggested. Even seven years after Prigg it applied only a limited version of recaption that restricted how and where enslaved people could be seized.[246] Story’s claim that the “right of seizure and recaption [was] universally acknowledged” was therefore overstated.[247]

His analysis of Blackstone was also misleading. Although Story quoted Blackstone at length, he did not engage with Blackstone’s serious concerns with the dangers of self-help, which were clearly implicated in the seizure of enslaved people. Recall that Blackstone maintained that common law recaption could not be justified if it relied on “force or terror” and that he understood the common law to view protection of the public as more important than protecting private parties’ rights to property.[248] From these precepts, Blackstone derived a straightforward conclusion: recaption should “never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.”[249] Blackstone’s standard meant that sufficient resistance against a recaption would require a property holder to turn to the law. It also considered societal peace, and not just the peace of the parties involved in the dispute.

It is difficult to imagine how any seizure of a person living as free could avoid breaching the peace if the standard Blackstone’s articulated were strictly observed. Story need not even have considered the perspective of alleged fugitives to have reached this conclusion. In the contentious political climate in which Prigg was decided, a seizure of an alleged fugitive slave was very likely to generate outrage or resistance from those who learned of the seizure. As Patricia Reid points out, “People in York county were disgusted by the removal of Margaret and the children.”[250] Pennsylvania’s personal liberty laws attested to its citizens’ investments in protecting Black residents, and historians have documented many violent confrontations, riots, and deaths engendered by attempts to seize alleged fugitives from slavery in free states.[251] In this context, Margaret’s repossession clearly threatened the peace.

Story seems to have recognized the need to modify the common law to establish a more permissive standard for breach of the peace. His opinion subtly changed Blackstone’s wording. According to Story, “[T]he owner of the slave . . . [could] . . . seize and recapture his slave . . . without any breach of the peace or illegal violence.”[252] By adding the caveat “illegal” and making “legal” violence acceptable in recaption, Story effectively undercut the traditional common law standard for breach of the peace that, as Blackstone noted, erred on the side of preserving order at the expense of property rights. Story needed to change this standard if he were going to hold that the violence inherent in using self-help to seize a human being was legally acceptable, even when done without the imprimatur of a court.[253]

Despite Story’s claim to the contrary, there was no meaningful sense in which the Fugitive Slave Clause could “execute itself.”[254] Instead it depended on the violence that American lawyers had already incorporated into the commercial law of slavery. Pennsylvania’s personal liberty laws seemed designed to prevent the “riotous” seizure of property that Blackstone suggested “endanger[ed] the peace of society.” Story’s voiding of the law created the dangers the statutes—and the common law’s protection of the peace—was designed to avoid.[255] By applying the principle of recaption to the seizure of supposed fugitive slaves, Justice Story extended the violent logic of the Southern courts that had allowed for recaption of enslaved people across the rest of the country. He also naturalized the right, obscuring the controversy and legal uncertainty that this expansion had generated, at least among some judges.

After Prigg, recaption continued to play a significant role in the law of fugitive slavery. Courts across the country recognized its importance.[256] Even Tennessee eventually acknowledged the right of recaption for enslaved people.[257] These courts also followed Story’s logic, accepting the level of violence that recaption in a slave society entailed. A New York case considering charges of “excessive force” provides an example of the violence that Story’s opinion accepted.[258] “It is true,” the court wrote, that the alleged fugitive slave “was confined by irons, after several violent acts of resistance, and attempts to escape; and his clothes were somewhat torn, and his person injured; but it must be remembered that the injuries complained of were committed on a recaption after one escape; and in efforts to overcome resistance, and to prevent another escape which the plaintiff was striving to effect.” In sum, no “more force was employed than was necessary.”[259] The court’s opinion both recognized the violence of recaption and erased it in the same opinion.

Understanding Prigg as part of a broader legal commitment to enforcing the commercial law of slavery helps to explain its significance and the significance of other self-help slave cases for developing the law of secured transactions. Prigg was not merely a case involving weighty constitutional issues of comity and federal power. It was also a case about the permissible boundaries of self-help. Justice Story’s opinion, like the opinions of other Southern judges, extended the right of self-help to the context of slavery and accepted an expansion of the right beyond what the common law would have allowed. When courts extended the common law right of recaption into the realm of slavery, they transformed that right, accepting the level of violence inherent in the repossession of people and the risks that such repossessions posed not only to enslaved people but also to a society premised on slavery and fighting over its future. This extension may have been part of a deliberate attempt to offer political protection for enslavers or to solidify the rights of property holders, or it might have been a less considered action, one that happened organically in a legal system accustomed to treating people like property.[260] Whatever the reason, by extending the common law doctrine of recaption to commerce in enslaved people, American judges naturalized the violence inherent in those transactions and in self-help. They willingly delegated the protection of property to private action, even when that delegation threatened social order. The risks were so clear that those sympathetic to enslavers, like the justices of the Tennessee Supreme Court, had seen them.[261] Prigg extended this violence still further, allowing a private right to trump a state’s modest attempt to protect its citizens from kidnapping.

IV. Slavery and Modern Self-Help

The acceptance of the violence inherent in the recaption of enslaved people had immediate significance for the law of fugitive slavery and in the lives of enslaved people. It also expanded the right of recaption far beyond its narrow boundaries in the common law. If the drafters of the U.C.C. had more deeply engaged with the nineteenth-century history of slavery and the expansion of the right of recaption it helped fuel, they might have reconsidered ratifying the expansion of the right of recaption, addressed some of the risks that its application in slavery presented, or at least attempted to justify it without relying on a history of the ancient right of recaption barely related to modern self-help repossession after default.

Their failure to address the acceptance of violence in the law of repossession continues to shape American law. The rise of consumer lending in the mid-twentieth century has made repossession of personal property a common occurrence. Now thousands of repossessions take place every day in the United States, many of which lead to violence.[262]

Integrating the history of slavery into doctrinal discussions of self-help repossession challenges its accepted place in the law. Lawyers and scholars who have relied on a simplified history of recaption, which normalizes and justifies repossession, must therefore confront the more complicated history of the recaption of enslaved people. It is possible that new doctrinal histories or functionalist accounts can justify the U.C.C.’s right of self-help repossession. Such justifications, however, must directly address the risk of violence that more recent histories of the doctrine’s application present rather than relying on a distant, unexamined past for support.

A.      The U.C.C.’s Missed Opportunity to Engage with Self-Help’s History

When the framers of the U.C.C. began drafting it in 1945, the legacy of slavery remained strongly present in law and American society. Plessy v. Ferguson was still good law, interracial marriage still barred in many states, and public segregation still common.[263] The Works Progress Administration had published its interviews with dozens of living, formerly enslaved people only four years earlier.[264] The U.C.C.’s framers were as close in time to abolition as this publication is to them. Article 9’s precursor, the Uniform Conditional Sales Act, promulgated in 1917 was even closer.[265]

The U.C.C. depended on the law that came before it. Although Article 9 of the U.C.C. made major reforms to the law of personal property security, as Grant Gilmore, one of the drafters put it, the U.C.C. was written in “shorthand” and “[t]he key which unlocks its cipher is the pre-Code law.”[266] In the self-help repossession context, the decision to let courts define breach of the peace demonstrated implicit reliance on the law of self-help that Justice Story and others expanded and helped define. Although they justified including self-help in the U.C.C. by pointing to the ancient right of recaption, codifying self-help for collateral after default permitted many more confrontations than common law recaption would have. By not engaging with nineteenth-century history, the drafters obscured the more recent precursors to the version of self-help they codified.

Their failure to engage with recaption’s application to enslaved people also obscured self-help’s potential for violence. As the Tennessee courts had recognized, permissive judicial standards might not only increase risk to the peace by legalizing risky conduct.[267] Expanding self-help could also encourage property claimants to take matters into their own hands, leading to violence that the courts could only address after it happened.[268] By not engaging with this history, and not returning to earlier, stricter understandings of breach of the peace, the drafters of the U.C.C. failed to reverse (and thereby accepted) the increased level of violence that slave recaption cases helped introduce into the American law of repossession.

It is not surprising that the U.C.C.’s drafters did not explicitly engage with self-help’s context. Dylan Penningroth has argued that legal realists, who played an essential role in framing the U.C.C., had trouble integrating the influence of race into their vision of law.[269] When talking about slavery, for example, they avoided discussing the historical reality of racial subjugation in favor of using the idea of slavery as a conceptual framing device for theoretical discussions.[270] Grant Gilmore characteristically attributed the nineteenth-century expansion of secured transactions to the “industrial revolution” and importance of “personal property” without considering slavery’s influence on both of those developments.[271]

Even though the drafters of the U.C.C. did not explicitly cite slave cases as a basis for the law, their failure to engage with the risks of self-help demonstrated by case law tacitly accepted self-help’s violent potential. Their justification of the right by reference to its ancient past obscured this history, normalized and legitimized the right, and encouraged judges to continue to accept the predictable violence that permissive rules for self-help repossession creates. The U.C.C. ensured that the United States would remain an outlier in terms of the significant power it grants repossessors of consumer property.

B.      Cars, Consumer Debt, and the Modern Manifestation of Secured Transactions

Although the U.C.C.’s right of self-help generated controversy when it was first enacted, the provision’s importance grew significantly in the second half of the twentieth century.[272] Before 1920, large-scale consumer lending was rare.[273] Both American consumers and mainstream lenders held norms that discouraged borrowing or lending for consumer purposes.[274] Even car purchasers mostly paid with cash. [275] This began to change in the 1920s, when independent auto financing companies pioneered installment lending for auto purchases.[276] Auto manufacturers soon offered financing plans of their own and by the 1930s, 60 percent of cars were purchased on installment plans.[277] Despite its growing importance, installment lending was still much less significant to the consumer economy than it would become. For one, new car purchases were still relatively rare. The richest 12.5 percent of families purchased 52 percent of all new cars in America.[278] In addition, loans required significant down payments and tended to last a year or less.[279]

After World War II, however, a much larger percentage of Americans began to purchase cars. Suburbanization meant that, for many Americans, owning a car had become a necessity rather than a luxury.[280] These changes took place just as the U.C.C. was drafted and ratified. Even the drafters, however, likely had little idea of how essential the right of self-help repossession would become for consumer lending. By 1960, 77 percent of American families owned at least one car.[281] These purchases increasingly depended on lengthy installment-plan loans. In 1960, only 14 percent of new car loans had terms shorter than thirty months.[282] These lengthy loans, and the buying power they helped create, played a “fundamental” role “in cementing the automobile as the centerpiece of US transportation.”[283] Increasing dependence on cars in turn led to increases in transportation spending. In 1950, the average American family devoted 9.5 percent of its budget to transportation costs.[284] In 1973, these costs had ballooned to 19 percent for those Americans who owned cars.[285] The increasing demand for consumer automobile financing, along with the lengthier terms and expense of loans, increased the rate and number of car repossessions.[286]

Americans today have inherited a dependence on expensive, finance-fueled car purchases. In 2024, 80 percent of new car buyers financed their purchases and consumers owed nearly $1.5 trillion dollars in outstanding car loans.[287] The amount and term of car loans has also continued to increase. The average new car loan lasts roughly thirty-six months with a monthly payment of over $700; the average used car loan lasts for roughly sixty-seven months at a cost of over $500 a month.[288] Borrowers with poor credit are responsible for approximately 15 percent of outstanding car loans, and they borrow money at interest rates averaging between 13 and 16 percent for new car loans and 18 and 22 percent for used cars.[289] The average American household now devotes 15 percent of its after-tax budget to transportation-related expenses; American households in the lowest income quintile spend an average of 30 percent of their income on transportation.[290] Expensive payments and lengthy loan terms continue to lead to delinquency and repossession. In late 2023, the delinquency rate for borrowers with poor credit was nearly 6 percent, just a few basis points off an all-time high.[291]

In a car-dependent society, borrowers need to take out loans, even if they cannot afford them.[292] The prevalence of lengthy car loans and frequency of default makes the risks of repossession nearly unavoidable. As a result, the sometimes euphemistically named “asset recovery” industry is now a powerful economic force with its own trade groups,[293] conferences,[294] news sites,[295] YouTube channels,[296] and podcast.[297] In 2022, repo specialists repossessed more than 1.2 million cars.[298] The law of self-help repossession is more important than ever.

C.      Modern Violence of Repossession

Although judges today do not cite slave recaption cases and may not even know they exist, their jurisprudence demonstrates that they have inherited an expansive vision of the right to self-help. This vision is more in line with that held by judges like Story than the common law vision of recaption in the “ancient histories” that modern treatise writers are fond of citing.

Like their predecessors, modern judges give property holders significant leeway for repossessions and accept the predictable violence that has come with this permissive approach. And like Story and other judges who applied recaption to enslaved people, modern judges erase this violence even as they describe it. Even though Maria’s children were seized on a public street, that seizure according to the court “reduced the likelihood of violence or other public disturbance.”[299] Courts applying a permissive breach of peace standard excuse many other creditor behaviors that create risks for the people whose property they repossess, the wider community, and the repossessors themselves.[300]

Modern courts have little need to cite Prigg or other cases involving the recaption of enslaved people for principles of self-help because recaption has been codified in the U.C.C. In cases turning on evaluating repossessions for breach of the peace, courts rely on newer cases that offer direct analogies to the kind of situations—locked garages, private docks, security guards—faced by modern repossession agents. The violence of repossession, however, has persisted. Permissive breach-of-peace standards and the industry that they have helped spawn encourage riskier behavior than is actually permitted under the law.[301] Because borrowers rarely know or assert their legal rights, repossessors have little incentive to moderate their own behavior. It is easy to find news reports and video accounts that document the seemingly routine violence of self-help.[302]

The consequences repossession are not distributed evenly: “Majority-Black communities and majority-Native American communities have the lowest median credit scores[,] the highest debt-in-collection rates, [and the highest] subprime credit score rates . . . .”[303] Young adults are especially likely to face the consequences of bad credit. The average person between the ages of 25 and 29 living in a majority Black community has a credit score of 582, more than 100 points below that of those in majority white communities.[304] Members of Black communities are therefore the most likely to pay high rates on car loans and to witness the violence of repossession or experience it themselves.

The social costs of permissive repossession extend beyond physical danger. Alexandra Natapoff has argued that low-level criminal processes provide the “frontline mechanism through which many people of color are drawn into the criminal system.”[305] Because of their pervasiveness, lack of fair processes, and extensive harms, they exact “quieter damage on an even grander scale” than felony prosecutions.[306] An expansive misdemeanor system in turn discourages trust in the legal system.[307] Those who encounter it learn “that they [are] unimportant, that law [doesn’t] matter, [and] that outcomes [are] foregone conclusions.”[308] Repossession sends the same message on an even larger scale. Every year, hundreds of thousands of repossessions happen in the United States.[309] Allowing private individuals to seize property without notice or process violates traditional legal norms and suggests to those who have their property seized that the law is not designed to protect them. The risk of violence that courts tolerate illustrates the legal system’s willingness to risk the safety of borrowers and their communities to protect the property rights of secured creditors. Weak regulation of self-help encourages further abuses. Even if they do not end up in court, creditors’ behaviors inform borrowers’ views of the law. The expense, difficulty, and meager remedies available even when borrowers can demonstrate a breach of the peace emphasize the message that the legal system is not designed to protect people like them.[310] Self-help repossession therefore likely encourages the same kind of distrust in the law that Natapoff has identified as a product of the misdemeanor system.

Studying nineteenth-century law—and the enslaved people considered its most valuable form of personal property—tells us more about this violence. Paul Gowder has argued that “the Black struggle for inclusion has built the foundations of our rule of law.”[311] We cannot learn the lessons of that struggle if we do not understand its relation not just to constitutional law but to law’s broader capacity for violence. Understanding self-help repossession’s place in slavery encourages us to reconsider the process that has legitimized this violence.[312]

Conclusion

The U.C.C.’s authorization of self-help repossession gives a unique and powerful right to creditors. Legal writers have generally situated this right within the long history of common law recaption. That history, however, shares little in common with the modern rule of self-help applied primarily to seize cars of consumers who miss payments. Nor does this history explain the permissive repossession standards found in American law. Studying nineteenth-century history helps illuminate these paradoxes. In cases involving disputes over enslaved people, American judges expanded the boundaries of self-help, raising the level of violence courts would accept in recaption. This acceptance of violence extended to seizures of alleged fugitive slaves, even when these seizures conflicted with state law. Slavery’s connection to the development of self-help possession laws need not foreclose the continued use of self-help repossession, but it should challenge the profession’s reliance on a different, less-related common law past to justify the unique power of modern self-help repossession under the U.C.C.

The law of self-help repossession is not the only area in which further attention to nineteenth-century history can be illuminating. Many other legal stories explain a legal principle’s ancient, common-law past before skipping to its contemporary manifestations.[313] Others engage with nineteenth-century law but not with the context within which that law was made. Learning about slavery’s relationship to private law will tell us more about our legal past and slavery’s persistent legal legacy.

Copyright © 2025 Justin Simard, Associate Professor of Law, Michigan State University College of Law. I appreciate the advice I have received on this article from Greg Ablavsky, Rabia Belt, Julia Bernier, Jake Bronsther, Kevin Douglas, Britanny Farr, John Aerni-Flessner, Sarah Barringer Gordon, Paul Gowder, Ariella Gross, Aaron Hall, David Hausman, Joshua Hausman, Noga Morag-Levine, Elizabeth Katz, K-Sue Park, Emily Prifogle, Vijay Raghaven, Daniel Rosenbaum, Jeff Simard, Karen Tani, and Evan Taparata. I am also grateful for the opportunity I had to present versions of this paper at the Chicagoland Junior Scholars Conference, the Spirit of the Law Conference, and the MSU Faculty Workshop. Thanks also to Jesse Doolin for his excellent research assistance, the students in my seminar for helping me think through these ideas, and the editors of the California Law Review for their careful attention to my article.

          [1].     Chapa v. Traciers & Assocs., 267 S.W.3d 386, 389 (Tex. Ct. App. 2008).

          [2].     Id.

          [3].     Id.

          [4].     Id.

          [5].     Id.

          [6].     Id.

          [7].     Id.

          [8].     U.C.C. § 9-609(a)–(b). The relevant portion of the provision reads as follows: “After default, a secured party . . . may take possession of the collateral . . . without judicial process, if it proceeds without breach of the peace.”

          [9].     U.C.C. § 9-203(b)(3)(A) (listing requirements for enforceability). There are other ways to create enforceable security agreements, but this is the most common in consumer transactions.

        [10].     U.C.C. § 9-609(a)(1). See Carolyn L. Carter, Repossessions § 6.5.2, App. B (10th ed. 2022).

        [11].     12B Purchase and Sale of Real Property § 36.07[9] (Karl B. Holtzschue, ed. 2024) (discussing statutory redemption procedures).

        [12].     See Ann O’Connell, State Laws on Termination for Nonpayment of Rent, NOLO, https://www.nolo.com/legal-encyclopedia/state-laws-on-termination-for-nonpayment-of-rent.html [https://perma.cc/MJD9-3EXB] (collecting state laws giving between three and thirty days of notice).

        [13].     Kathryn Ramsey Mason, Housing Injustice and the Summary Eviction Process: Beyond Lindsey v. Normet, 74 Okla. L. Rev. 391, 393, 413–21 (2022) (describing summary eviction process and criticizing its limits); Mary B. Spector, Tenants’ Rights, Procedural Wrongs: The Summary Eviction and the Need for Reform, 46 Wayne L. Rev. 135, 162–79 (2000) (same).

        [14].     They must first sue the debtor to receive a judgment from the court and then, after a waiting period, request a court order to have a sheriff seize the debtor’s property. Significant portions of that property could be protected by state law. See Debtor-Creditor Law § 27.03(1)(a), 27.03(1)(b), 27.03(3)(a) (Theodore Eisenberg & James M. Lawniczak eds., 2024) (describing limitations on reaching property based on nature of property and statutory exemptions of certain property from seizure).

        [15].     Claire Ballentine, The Repo Man Returns as More Americans Fall Behind on Car Payments, Bloomberg Businessweek (April 19, 2023), https://www.bloomberg.com/news/articles/2023-04-19/inflation-high-car-prices-hurt-us-consumers-and-boost-repo-demand [https://perma.cc/VR9H-RDSW].

        [16].     According to a report from the National Consumer Law Center, creditors undertook nearly two million repossessions in 2009. John W. Van Alst & Rick Jurgens, Nat’l consumer L. Ctr., Repo Madness: How Automobile Repossessions Endanger Owners, Agents and the Public 1 (2010), http://www.nclc.org/images/pdf/special_projects/auto/report-repo-madness.pdf [https://perma.cc/H6B8-Y68R].

        [17].     Id. at 12; Nicholas Tucker Reyes & Spencer Headworth, Credit Cars: Or How I Learned to Stop Worrying and Love Auto Loans, L & Soc. Inq. 1, 24 (2024).

        [18].     David Ferrell, Hard Times for Repo Men, L.A. Times, Dec. 27, 1991, at A1 (“‘I consider [repo work] like carrying a rattlesnake around in a wet bag . . . . it’s going to bite you.’”).

        [19].     Wade v. Ford Motor Credit Co., 668 P.2d 183, 184 (Kan. Ct. App. 1983) (“She then called a representative of Ford and stated she had a gun and that if she caught anyone on her property again trying to take her car, that ‘I would leave him laying right where I saw him.’”).

        [20].     Johnson v. State, 1988 Minn. App. LEXIS 461 *2 (1988); Sam Howe Verhovek, In Killing of Repo Man, Law Shields the Killer, N.Y. Times A16 (Mar. 8, 1994); Ken Denlinger, Repo Job, Dodging Bullets Are Kicker to His Resume, Wash. Post D14 (May 23, 1993) (describing repo man who was “shot at ‘15 to 20 times’” in four years); Texas Truck Owner is Cleared in Death of Repo Man, L.A. Times A4 (Mar. 26, 1994) (debtor thought repo agent “was a car thief” and court found that under Texas law he was “permitted to shoot at [a] nighttime intruder[]”) [https://perma.cc/7P38-WRYQ]); Ferrell, supra note 18, at A1, A22 (describing numerous violent incidents); Jeff Long, Vehicle Repossession Team Shot at in Tow, Chi. Trib. SSW14 (Jan. 16, 2009), https://www.chicagotribune.com/2009/01/16/vehicle-repossession-team-shot-at-in-tow/  [https://perma.cc/7A8P-DNYU]; Jay Reeves, Violence between Repo Men, Car Owners Rising, NBC News (Feb. 27, 2009), https://www.nbcnews.com/id/wbna29427734 [https://perma.cc/YM9X-PRWU] (describing debtor killed by repossession agent).

        [21].     Van Alst & Jurgens, supra note 16, at 1, 9–12 (finding that between 2006 and 2010, six people died in repossession attempts); Ballentine, supra note 15; Reeves, supra note 20; Griffith v. Valley of Sun Recovery & Adjustment Bureau, 613 P.2d 1283, 1284 (Ariz. Ct. App. 1980) (describing accidental discharge of gun during repossession).

        [22].     MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 152 (Tex. 1992) (“Sanchez was left in the repossession lot, with a Doberman pinscher guard dog loose in the yard, until later rescued by her husband and police.”).

        [23].     Big Three Motors, Inc. v. Rutherford, 432 So. 2d 483, 484 (Ala. 1983).

        [24].     McCall v. Owens, 820 S.W.2d 748, 750 (Tenn. Ct. App. 1991) (“[I]n defendants’ haste to tow the car from his property the wrecker ran over his foot and knocked him to the ground.”).

        [25].     Jordan v. Citizens & S. Nat. Bank of S.C., 278 S.C. 449, 450 (1982).

        [26].     See, e.g., Car Repossessed with Baby Inside While Dad Went Grocery Shopping, Fox San Antonio (Jan. 21, 2016), https://foxsanantonio.com/news/local/car-repossessed-with-child-inside [https://perma.cc/E2CR-XJVS]; Katherine Scott, Minivan Repossessed, Towed with Sleeping Child Inside in Philadelphia, ABC 7 (June 23, 2017), https://abc7ny.com/philadelphia-southwest-west-repo-man/2136812/ [https://perma.cc/6M22-U9AV]; Oklahoma Repo Man Takes Possession of Car with Baby Inside, AP News (July 18, 2016), https://apnews.com/article/dcdae508a9fe4706891dadf4155221ae [https://perma.cc/R2D3-TFRP]; Bob Kealing, Will Charges Be Filed After Car Repossessed with Baby Inside?, WESH 2 (Feb. 11, 2015), https://www.wesh.com/article/will-charges-be-filed-after-car-repossessed-with-baby-inside-1/4440198 [https://perma.cc/5AN6-VEXC]; 1-Year-Old Child Safe After Being Taken Away in Car That Was Repossessed, News12 (Feb. 12, 2020), https://newjersey.news12.com/1yearold-child-safe-after-being-taken-away-in-car-that-was-repossessed-41693999 [https://perma.cc/G24V-3RDK] (“[The debtor] says that she does not blame the repo company, but she hopes that drivers check the back seats of any cars they take in the future.”); Dane Kelly, Michigan Mother, 2-Year-Old Reunited After Vehicle Repossessed with Toddler Inside, WILX 10 (May 19, 2023), https://www.wilx.com/2023/05/20/michigan-mother-2-year-old-reunited-after-vehicle-repossessed-with-toddler-inside/ [https://perma.cc/VMD9-E2LE]; SUV with 1-Year-Old Girl in Back Seat Repossessed, Towed from East Orange to Newark, CBS News (Feb. 12, 2020), https://www.cbsnews.com/newyork/news/new-jersey-suv-towed-baby-back-seat/ [https://perma.cc/A87M-V3ZK]; Lisa Fernandez, Repo Man Takes San Jose Mom’s Car with 2-Year-Old in Back Seat, Mercury News (Jan. 13, 2010), https://www.mercurynews.com/2010/01/13/repo-man-takes-san-jose-moms-car-with-2-year-old-in-back-seat/ [https://perma.cc/T9D9-5NG7].

        [27].     U.C.C. § 9-609, cmt. 3.

        [28].     See, e.g., Laurel Coal Co. v. Walter E. Heller & Co., 539 F. Supp. 1006, 1007 (W.D. Pa. 1982).

        [29].     See Morris v. First Nat. Bank & Tr. Co. of Ravenna, 254 N.E.2d 683, 686 (1970).

        [30].     Barkley Clark & Barbara Clark, The Law of Secured Transactions under the Uniform Commercial Code § 4.05 (2024).

        [31].     See, e.g., Census Fed. Credit Union v. Wann, 403 N.E.2d 348, 352 (Ind. Ct. App. 1980); see also Clark & Clark, supra note 30, § 4.05 (noting that in some cases oral protest precludes self-help repossession); Carter, supra note 10, § 6.5 (“[A] number of states have right to cure laws that require notice to consumers and an opportunity to cure before repossession.”).

        [32].     See, e.g., Furches Motor Co. v. Anderson, 61 So. 2d 674, 680 (Miss. 1952).

        [33].     See, e.g., Ford Motor Credit Co. v. Ryan, 939 N.E.2d 891, 908 (Ohio App. 2010).

        [34].     See, e.g., In re Bolin & Co., LLC, 437 B.R. 731, 756 (D. Conn. 2010).

        [35].     Jordan v. Citizens & S. Nat. Bank of S.C., 278 S.C. 449, 450 (1982).

        [36].     Wade v. Ford Motor Credit Co., 8 Kan. App. 2d 737, 739 (Kan. Ct. App. 1983).

        [37].     First Nat. Bank of Black Hills, Sturgis v. Beug, 400 N.W.2d 893, 898 (S.D. 1987).

        [38].     Chapa v. Traciers & Assocs., 267 S.W.3d 386, 395 (Tex. Ct. App. 2008).

        [39].     See Rivera v. Dealer Funding, LLC, 178 F. Supp. 3d 272, 280 (E.D. Pa. 2016); Davis v. Toyota Motor Credit, No. CIV.A. H-12-0287, 2013 WL 4786328, at *8 (S.D. Tex. Sept. 6, 2013); Price Auto Sales, Inc. v. Sanders, No. 05-11-00746-CV, 2012 WL 3734388, at *3 (Tex. App. Aug. 29, 2012); Droge v. AAAA Two Star Towing, Inc., 468 P.3d 862, 872 (Nev. App. 2020).

        [40].     K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062, 1126 (2022); Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79, 85-86 (2020); Justin Simard, The Precedential Weight of Slavery, 47 N.Y.U. Rev. L. & Soc. Change 167, 176-77 (2023) [hereinafter Precedential Weight].

        [41].     Most civil law countries have no provision for self-help repossession in their law. Other common law systems that authorize self-help repossession make it easier for debtors to demonstrate that their creditors have breached the peace. Cӑtӑlin Gabriel Stӑnescu, Self-Help, Private Debt Collection and the Concomitant Risks vii (2015). As a commentator on U.K. law has put it, creditors there must “take the greatest care not to commit any of the numerous offenses” that limit their rights. Roy Goode & Stephen Makin, Goode: Consumer Credit Law and Practice (1999). U.K. creditors must also abide by consumer protection laws that provide additional protection. Richard Calnan, Taking Security § 9.90 (4th ed. 2018).

        [42].     See Park, supra note 40 (describing erasure of slavery and dispossession from property law); see also Dylan Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199 (2022) (showing how legal professionals have obscured race in contract law).

        [43].     See, e.g., Stephen L. Sepinuck & Kara J. Bruce, Problems and Materials on Secured Transactions 47 (6th ed. 2023) (noting that “existing uniform laws had become outdated”); Ray D. Henson, Secured Transactions Under the Uniform Commercial Code 2 (1978) (describing confusing state of education on pre-U.C.C. commercial law). Although they vary in length and detail, the stories in modern treatises, casebooks, and practitioners’ guides are remarkably consistent.

        [44].     William H. Lawrence, William H. Henning & R. Wilson Freyermuth, Understanding Secured Transactions 8 (2012).

        [45].     Nathalie Martin & Frederick Hart, Secured Transactions 14 (3d ed. 2022); Douglas J. Whaley, Secured Transactions 2–8 (2020).

        [46].     See Sepinuck & Bruce, supra note 43, at 47 (commercial activity); James J. White, Robert S. Summers, Daniel D. Barnhizer, Wayne R. Barnes, Franklin G. Synder, Principles of Secured Transactions 2 (2018) (“[B]y the middle of the 20th [century], it was increasingly difficult for nationwide lenders to get the loan protections they sought. . . .” ); Leonard Lakin & Howard J. Berger, A Guide to Secured Transactions 56–57 (1970) (“More and more attention was centered upon the need to enlarge the consumer market for the goods which American industry produced and upon the means for moving these goods from the manufacturer to wholesaler, distributor, retailer, and ultimate consumer.”).

        [47].     Julian B. McDonnell & James P. Nehf, 1 Secured Transactions Under the UCC § 1.01 (2018).

        [48].     Lawrence, supra note 44, at 2 (“The concept of a secured obligation developed to encourage lending, and thus promoted commercial activity, by reducing the risk borne by lenders.”).

        [49].     Lakin & Berger, supra note 46, at 57.

        [50].     Douglas J. Whaley & Stephen M. McJohn, Problems and Materials on Secured Transactions 2 (11th ed. 2021); Donald W. Baker, A Lawyer’s Basic Guide to Secured Transactions 1, 5 (1983) (“By the late 1930s the need for reform in the commercial law area had become apparent.”).

        [51].     Whaley, supra note 45, at 2; Lakin & Berger, supra note 46, at 57.

        [52].     Whaley & McJohn, supra note 50, at 2.

        [53].     Lakin & Berger, supra note 46, at 60; Henson, supra note 43, at 2.

        [54].     Henson, supra note 43, at 2.

        [55].     White, et. al, supra note 46, at 1–2 (“Grant Gilmore, Allison Dunham, and Karl Llewellyn”).

        [56].     Whaley & McJohn, supra note 50, at 2–3. Although the U.C.C. has received much praise from scholars, it has also received criticism from those focused on its effects on consumers. See, e.g., Jean Braucher, The Repo Code: A Study of Adjustment to Uncertainty in Commercial Law, 75 Wash. U.L.Q. 549 (1997)  (highlighting issues with the application of breach of the peace law to consumers); Norman Silber, Substance Abuse at UCC Drafting Sessions, 75 Wash. U.L.Q. 225 (1997) (discussing consumers’ limited influence on UCC drafting process); Gail Hillebrand, The Redrafting of UCC Articles 2 and 9: Model Codes or Model Dinosaurs, 28 Loy. L.A. L. Rev. 191 (1994) (“A modern model code would recognize the differences between the negotiated transaction and the mass market consumer transaction call for different default rules . . . .”); Edward J. Janger, Predicting When the Uniform Law Process Will Fail: Article 9, Capture, and the Race to the Bottom, 83 Iowa L. Rev. 569, 572–73 (1998) (criticizing incentive structure that Article 9 creates); Barkley Clark, Default, Repossession, Foreclosure, and Deficiency: A Journey to the Underworld and a Proposed Salvation, 51 Or. L. Rev. 302 (1972) (describing the U.C.C. as “anti-consumer legislation”). Even Grant Gilmore, one of the framers of Article 9, recognized the problems that repossession creates in consumer finance. 2 Grant Gilmore, Security Interests in Private Property 1212 (1965). Others have criticized the lack of due process provided by the repossession process. See infra Part B.2.

        [57].     For general development and enactment of the U.C.C. see Peter Winship, An Historical Overview of UCC Article 9, in Secured Transactions Law Reform 21, 24–35 (Louise Gullifer & Orkun Akseli eds., 2016).

        [58].     Amelia Boss, Foreword, in Russell A. Hakes, The ABCs of the UCC. Article 9: Secured Transactions xi (3d ed. 2013).

        [59].     Richard B. Hagedorn, Secured Transactions in a Nutshell 9 (2007) (“more rational filing system”); Hakes, supra note 58, at 3 (“Not only was the original Article 9 successful in consolidating and simplifying the law, it also significantly expanded the role of personal property as collateral.”).

        [60].     Lawrence, Henning & Freyermuth, supra note 44 at 2 (“The concept of a secured obligation developed to encourage lending, and thus promotes commercial activity, by reducing the risk borne by lenders.”).

        [61].     Lakin & Berger, supra note 46, at 68 (“Its fundamental objective is simple and benign: to provide the legal framework within which secured transactions vital to the nation’s economic health and stability can be effected simply, cheaply, openly, and safely.”).

        [62].     Grant Gilmore, one of Article 9’s primary drafters, was especially insistent on the importance of the pre-U.C.C. law, but few other scholars have engaged as deeply as he did with the pre-U.C.C. law. See Gilmore, supra note 56, at vii.

        [63].     See, e.g., Henson, supra note 43, at 363; White et al., supra note 46, at 244–26; Sepinuck & Bruce, supra note 43, at 172–84; Baker, supra note 50, at 304–05; Richard B. Hagedorn, supra, note at 59at 334–36; Hakes, supra note 58, at 133; Martin & Hart, supra note 45, at 47–50; Whaley, supra note 45, at 138–40; Lynn M. LoPucki, Elizabeth Warren & Robert M. Lawless 44–50 (2016); Clark & Clark, supra note 30, § 4.05[3]; McDonnell & Nehf, supra note 47, § 8.05[3].

        [64].     Gilmore, supra note 56, at 1212.

        [65].     See, e.g., McDonnell & Nehf, supra note 47, § 8.05[3]; Clark & Clark, supra note 30, § 4.05[3][b]; Whaley, supra note 45 at 138–39; Carter, supra note 10, § 6.4.

        [66].     See, e.g., McDonnell & Nehf, supra note 63, § 8.05[3]; Clark & Clark, supra note 30, § 4.05[3][b]; Whaley, supra note 45, at 138–39; Carter, supra note 30, § 6.4.

        [67].     Whaley, supra note 45, at 138.

        [68].     Robert W. Johnson, Denial of Self-Help Repossession: An Economic Analysis, 47 S. Cal. L. Rev. 82, 114 (1973).

        [69].     Soia Mentschikoff, Peaceful Repossession under the Uniform Commercial Code: A Constitutional and Economic Analysis, 14 Wm. & Mary L. Rev. 767, 784 (1973); see also Timothy Zinnecker, The Default Provisions of Revised Article 9 of the Uniform Commercial Code: Part 1, 54 Bus. Law. 1113, 1140 (1999) (discussing access to cheaper credit); James R. McCall, The Past as Prologue: A History of the Right to Repossess, 47 S. Cal. L. Rev. 58, 79–80 (1973) (explaining the U.C.C. drafters’ decision to “accord great freedom” to repossessing parties).

        [70].     Henson, supra note 43, at 364; see also Hill v. Michigan Nat. Bank of Detroit, 228 N.W.2d 407, 410 (Mich. Ct. App. 1975) (“[T]he common law right of self-help repossession has merely been codified by [the U.C.C.]”).

        [71].     Carter, supra note 10, § 6.1 (citing Wallace v. Chrysler Credit Corp., 743 F. Supp. 1228, 1231 (W.D. Va. 1990)); Hakes, supra note 58, at 3.

        [72].     Eugene Mikolajczyk, Breach of Peace and Section 9-503 of the Uniform Commercial Code-A Modern Definition for an Ancient Restriction, 82 Dick. L. Rev. 351, 352–53 (1978).

        [73].     McCall, supra note 69, at 63–65; Ryan McRobert, Defining ‘Breach of the Peace’ in Self-Help Repossessions, 87 Wash. L. Rev. 569, 569 (2012).

        [74].     Clark & Clark, supra note 30, § 4.05; Hakes, supra note 58, at 3 (also describing “centuries” of history). For other examples of this same pattern, see Lakin & Berger, supra note 46, at 177; Gilmore, supra note 56, at 1212; Henson, supra note 43, at 365.

        [75].     Boss, supra note 58, at xi (“The keys to deciphering [the U.C.C.] . . . are often found in an understanding of non-Code law.”).

        [76].     See McCall, supra note 69, at 66–74; Mikolajczyk, supra note 72, at 352–54; McRobert, supra note 73, at 569–74.

        [77].     Grant Gilmore’s work is an important exception. See Gilmore, supra note 56, at 1212.

        [78].     See McCall, supra note 69, at 72–74; Mikolajczyk, supra note 72, at 354; McRobert, supra note 72, at 574. K-Sue Park has recently identified a similar tendency in the law of property, showing how scholars and lawyers have written out the history of slavery and dispossession of Native American land from fundamental tenets of American property law. K-Sue Park, supra note 40, at 1067.

        [79].     See Simard, Precedential Weight, supra note 40, at 171–77 (discussing “the scholarly neglect of slave cases”). Race more generally, has been a major area of oversight in discussions of private law. See generally Dylan Penningroth, Before the Movement: The Hidden History of Black Civil Rights (2023) (describing missing history of Black engagement with the law before the civil rights movement); Penningroth, supra note 42, at 1203 (noting new work highlighting how “modes of legal education and legal scholarship hide the profound influence that slavery, the violent dispossession of Native Americans, and cases involving racial minorities have had on contract laws”); Adrienne Davis, The Private Law of Race and Sex: An Antebellum Perspective, 51 Stan. L. Rev. 221, 287 (1999) (describing importance of race to “the private law of marriage and testamentary transfer”); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1725 (1993) (describing whiteness as a “legally recognized property interest”).

        [80].     See Simard, Citing Slavery, supra note 40, at 84–93.

        [81].     Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1032–33 (1990).

        [82].     For more on the importance of precedent constituting authority, see William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & Econ. 250 (1976); Frank B. Cross, James F. Spriggs II, Timothy R. Johnson & Paul J. Wahlbeck, Citations in the U.S. Supreme Court: An Empirical Study of Their Use and Significance, 2010 U. Ill. L. Rev. 489, 522 (2010); Jane E. Goodman, Matt Tomlinson & Justin B. Richland, Citational Practices: Knowledge, Personhood, and Subjectivity, 43 Ann. Rev. Anthropology 449–63 (2014). For more general discussion of law’s legitimating function see Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 814 (1987).

                 Mythmaking and storytelling have long been a part of the legal process. Lawyers’ legal histories have been discussed (and demeaned) for decades for their limited scope, narrow findings, and result-oriented reasoning. See, e.g., Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 S. Ct. L. Rev. 119 (1965) (criticizing “law-office history”); John Phillip Reid, Law and History, 27 Loy. L.A. L. Rev. 193, 193–205 (1993) (“Common lawyers tend to be anachronistic, not merely because they are advocates, but because of the way they think and speak about the past.”); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-in-Law, 71 Chi.-Kent L. Rev. 909 (1996) (arguing that lawyers’ histories should not be evaluated by the standards of historians); Jack Balkin, Lawyers and Historians Argue about the Constitution, 35 Const. Comment. 345 (2020) (highlighting sources of tension between lawyers and historians).

        [83].     See supra notes 67–69 and accompanying text.

        [84].     See supra notes 47–48 and accompanying text.

        [85].     C.f. Shaunnagh Dorsett & Shaun McVeigh, Jurisdiction, 57, 60, 71, (2012) (noting importance of citation in judicial work); Matthew S. Hull, Documents and Bureaucracy, 41 Ann. Rev. Anthropology 251, 253 (2012) (same).

        [86].     See Kronman, supra note 81, at 1036–37.

        [87].     For more on the purposes of precedent see generally Charles L. Barzun, Impeaching Precedent, 80 U. Chi. L. Rev. 1625 (2013); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595–602 (1987).

        [88].     Adams v. Egley, 338 F. Supp. 614, 617 (S.D. Cal. 1972), aff’d in part, rev’d in part sub nom; Adams v. S. California First Nat. Bank, 492 F.2d 324 (9th Cir. 1973), as modified on denial of reh’g (Mar. 12, 1974). Scholars also voiced concerns. See, e.g., Robert S. Catz & Edmund H. Robinson, Due Process and Creditor’s Remedies: From Sniadach and Fuentes to Mitchell, North Georgia and Beyond, 28 Rutgers L. Rev. 541 (1975); Steven Kurt Sanders, Self-Help Repossession under the Uniform Commercial Code: The Constitutionality of Article 9, Section 503, 4 N.M. L. Rev. 75 (1973); Mark G. Yudof, Reflections on Private Repossession, Public Policy and the Constitution, 122 U. Pa. L. Rev. 954 (1974); Spencer Neth, Repossession of Consumer Goods: Due Process for the Consumer: What’s Due for the Creditor, 24 Case W. Res. L. Rev. 7 (1972).

        [89].     See Sniadach v. Fam. Fin. Corp. of Bay View, 395 U.S. 337 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967). Challenges to other parts of the U.C.C. were successful. In Fuentes v. Shevin, the Supreme Court held that creditors could not be granted a writ of replevin based solely on their “bare assertion” but instead needed to have “tested their claim to the goods through the process of a fair prior hearing.” 407 U.S. 67, 73 (1972).

        [90].     See 42 U.S.C. § 1983 (“under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia”). The under color of law requirement in § 1983 has been read to parallel the Fourteenth Amendment’s “state action” requirement. U.S. Const. amend. XIV; United States v. Price, 383 U.S. 787 (1965).

        [91].     Adams, 338 F. Supp. at 618.

        [92].     387 U.S. 369 (1967).

        [93].     Mentschikoff, supra note 69, at 767.

        [94].     Id. at 775.

        [95].     See, e.g., McCall, supra note 69, at 75–80.

        [96].     Brief for the Permanent Editorial Board for the Uniform Commercial Code as Amicus Curiae at 1, 6, Adams v. S. Cal. First Nat. Bank, 492 F.2d 324 (9th Cir. 1973) (noting origins of right in seventeenth-century England and arguing that “a generalized requirement of judicial hearing before repossession or disposition will work to the disadvantages of debtors”).

        [97].     Clark & Clark, supra note 30, § 4.05[1][b] (noting “whirlwind of litigation” and courts’ conclusion that Article 9 repossession “has been generally characterized as nothing more than codification of the common law and common commercial practice”).

        [98].     Northside Motors of Fla., Inc. v. Brinkley, 282 So. 2d 617, 622 (Fla. 1973) (citing 2 Pollock & Maitland, The History of English Common Law 574 (2d ed. 1968); 2 Blackstone, Commentaries on the Laws of England 856–58).

        [99].     King v. S. Jersey Nat. Bank, 330 A.2d 1, 5–6 (N.J. 1974); see also Messenger v. Sandy Motors, Inc., 121 N.J. Super. 1, 8, 295 A.2d 402, 405–06 (Ch. Div. 1972) (“[S]elf-help has been known to the common law for centuries.”).

      [100].     Helfinstine v. Martin, 561 P.2d 951, 954 (Okla. 1977); Benschoter v. First Nat. Bank of Lawrence, 542 P.2d 1042, 1046 (Kan. 1975).

      [101].     Shirley v. State Nat’l Bank., 493 F.2d 739, 742, 742 n.2 (2d Cir. 1974) (citing Swift’s Digest of Laws of Connecticut 376–77, 468–69 (Dutton & Cowdrey Rev. 1864); McCall, supra note 69; and other sources).

      [102].     See, e.g., Adams v. S. Cal. First Nat. Bank, 492 F.2d 324, 330 (9th Cir. 1973), as modified on denial of reh’g (Mar. 12, 1974) (“[R]emedy has been recognized and permitted as a part of the common law.”) (citing F. Pollack & F. Maitland, History of English Law 574–77 (2d ed. 1899)); Gibbs v. Titelman, 502 F.2d 1107, 1111 (3d Cir. 1974) (“Unlike Reitman then, the State of Pennsylvania has not by the enactment of the MVSFA permitted a practice which was formerly prohibited.”).

      [103].     See Wallace v. Chrysler Credit Corp, 743 F. Supp. 1228, 1231 (W.D. Va. 1990); State v. Indrisano, 29 Conn. App. 283, 286–87, 613 A.2d 1375, 1378 (1992), rev’d, 228 Conn. 795, 640 A.2d 986 (1994).

      [104].     See, e.g., Charles Viner, A General Abridgement of Law and Equity, Alphabetically Digested under Proper Titles; with Notes and References to the Whole 506 (London, G.G.J. and J. Robinson, 2d ed. 1793); Matthew Bacon, A New Abridgement of the Law, Alphabetically Digested Under Proper Titles 182 (Dublin, Luke White, 6th ed. 1793); 3 William Blackstone, Commentaries on the Laws of England in Four Books 3 (Oxford, Clarendon 1768). Until the mid-seventeenth century, English case reporters recorded cases in “law French,” a special legal dialect that shared little in common with vernacular French. See J.H. Baker, Manual of Law French 9–14 (1979).

      [105].     Higgins & Andrewes, 2 Roll Rep. 55 (1619).

      [106].     See Masters & Poolies Case, 2 Roll. Rep. 207, 208 (1621) (describing recaption rule as exception to general rule forbidding trespass).

      [107].     3 Edwardo Coke, The Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Cases 134 (London, M. Flesher 1644).

      [108].     Matthew Hale, The Analysis of the Law: Being a Scheme, or Abstract, of the Several Titles and Partitions of the Law of England 124–25 (London, E. Nutt, 2d ed. 1716). Hale also notes that the right of recaption also applies to wives, children, and servants. I can find no evidence from this period, however, of it being applied to enslaved people.

      [109].     2 William Hawkins, A Treatise of the Pleas of the Crown 2 (London, G.G. & J. Robinson 1716).

      [110].     3 William Blackstone, Commentaries on the Laws of England in Four Books 4 (Oxford, Clarendon 1768).

      [111].     Id. Although Blackstone mentions that the right of recaption applies to servants, there is no evidence that he is talking about enslaved people.

      [112].     Id.

      [113].     It offered a “more speedy remedy than can be had in ordinary forms of justice.” Id. at 2–3.

      [114].     Id. at 4.

      [115].     Id.

      [116].     Id. at 5.

      [117].     Id. at 4.

      [118].     Id.

      [119].     3 William Blackstone, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States and of the Commonwealth of Virginia 4 (St. George Tucker ed., Philadelphia, William Young Brich & Abraham Small eds., 1803). Craig Evan Klafter, The Americanization of Blackstone’s Commentaries, in Essays on English Law and the American Experience 42, 60-61 (Elisabeth A. Cawthon & David E. Narrett eds., 1994); Robert M. Cover, Book Review, 70 Colum. L. Rev. 1475, 1475-76 (1970) (reviewing Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia). Nor was recaption mentioned in Tucker’s voluminous appendices.

      [120].     2 William Blackstone, Commentaries on the Laws of England (Joseph Chitty ed., London, W.E. Dean eds., 1832) 3 n.3 (citing Weaver v. Bush, 8 T.R. 78 (1798)).

      [121].     A few sources, including the Restatement (Second) of Torts, describe a more powerful right of recaption that allows for the use of force in certain situations. See, e.g., Hawkins, supra note 109 at 1, 141 (making allowance for force against the possessor, whose wrongdoing caused the dispossession of property); C.A. Branston, Forcible Recaption of Chattels, 28 L.Q. Rev. 262, 267 (1912) (noting force allowable when immediate recapture from the dispossessor is possible); Blades v. Higgs, 142 Eng. Rep. 634 (1861) (allowing forcible recaption for rabbits that had been illegally hunted on defendant’s land); Restatement (Second) of Torts §100 cmt.b, §§101–106 (Am. L. Inst. 1965) (forcible recaption allowed if property was previously possessed by repossessor, the repossessor acts “promptly,” requests return of property when feasible, and does not use excessive force).

                 This line of cases focuses primarily on situations in which property is seized from someone in his presence and relates to the right of self-defense. See Baldwin v. Hayden, 6 Conn. 453, 457 (1827) (“By the common law, a man may justify a battery of a person, who endeavours wrongfully to dispossess him of his lands, or take away his goods; for self-defence is a primary law of nature. But care must be taken not to exceed the bounds of mere defence, prevention or recovery, so as to become vindictive.”) (citing 3 William Blackstone, Commentaries on the Laws of England in Four Books 121 for his discussion of self-defense). Blackstone’s treatment of this kind of forcible self-help is informative: “[I]f the party. . . be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only, who began the affray.” 3 Blackstone, supra note 119, at 3. The cases cited by the Restatement (second) of Torts, generally present similar facts. See Heminway v. Heminway, 58 Conn. 443, 445 (1890) (refusal to return corporate papers); Commonwealth v. Donahue, 148 Mass. 529, 531 (1889) (return of money); State v. Elliot, 11 N.H. 540, 543 (1841) (pursuit of thief of windows); Hodgeden v. Hubbard, 18 Vt. 504, 507 (1846) (stolen stove). Neither these cases nor the Restatement is cited by legal writers describing the history of the right to self-help possession.

                 Legal treatises and dozens of American cases also discuss “recaption” of prisoners who have escaped from a sheriff’s custody. Sheriffs who are able to find and bring the prisoner back into custody can use “recaption” of someone imprisoned for a debt as a defense against suits from the creditor who would otherwise be able to sue the sheriff to recover the debt. E.g., Francis J. Byrne, Escape, in 11 American And English Encyclopaedia of Law 258, 286-87 (David S. Garland & Lucius P. McGhee, eds., Long Island, Edward Thompson Co., 2d ed. 1899). For cases, see, e.g., Tillman v. Lansing, 4 Johns. 45, 47 (N.Y. Sup. Ct. 1809) (“It is not to be denied, that fresh pursuit and recaption before action brought, is a good defence against a negligent escape; and a voluntary return of the prisoner before action commenced, will also purge an escape of this description.”); Drake v. Chester, 2 Conn. 473, 475 (Conn. 1818) (“A recaption, on fresh pursuit, or a voluntary return by the debtor, before action brought, will excuse the sheriff; and he is not liable to an action for the escape.”). This version of recaption has also not been relied upon in discussions of self-help.

      [122].     See, e.g., 2 Richard Burn, New Law Dictionary 270 (London, A. Strahan 1792); 4 Zephaniah Swift, System of the Laws of the State of Connecticut in Six Books 2 (Windham, Conn., J. Byrne 1796) (both citing to Blackstone).

      [123].     See Gregory S. Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought 1776-1970 at 138–43 (1997) (noting the difficulty in Blackstone’s era of recognizing intangible things as assets).

      [124].     See supra note 14 and accompanying text.

      [125].     In the U.S. creditors relied on lawyers to track down and negotiate with debtors. See Justin Simard, Slavery’s Legalism, 37 L. & Hist. Rev. 571, 596–601 (2019).

      [126].     See 3 Blackstone 6–13 (describing remedy of “distress”). The distress remedy seems in many ways to share more in common with self-help repossession than the remedy of recaption because of the ability to seize personal property to satisfy a debt. There are several reasons why legal writers are likely hesitant to draw this analogy: (1) Distress is linked to feudal notions of obligation owed to Kings and Lords; (2) many states have abolished the right of distress altogether; (3) true self-help distress is rarely allowed in the United States; (4) the Supreme Court has struck held some distress remedies to be unconstitutional; (5) unlike recaption, distress remedies have lost rather than gained potency in the twentieth century. See 2 Richard R. Powell, Powell on Real Property § 16A.01 n.137 (Michael Allan Wolf ed., 2024) (1949) (noting states that have abolished distress remedies); Douglas Ivor Brandon, Melinda Lee Cooper, Jeremy H. Greshin, Alvin Louis Harris, James M. Head, Jr., Keith R. Jacques & Lea Wiggins, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 943, 945 (1984) (outlining landlords’ rights over tenant property after missed rent payments); Randy G. Gerchick, No Easy Way Out: Making the Summary Eviction Process a Fairer and More Efficient Alternative to Landlord Self-Help, 41 UCLA L. Rev. 759, 761-64 (1993) (outlining regulations on the landlord-tenant relationship).

      [127].     See K-Sue Park, This Land is Not Our Land, 87 U. Chi. L. Rev. 1977, 1992–2004 (2020) (reviewing Jedediah Purdy, This Land Is Our Land: The Struggle for a New Commonwealth (2019) (describing “erasure of histories of conquest, slavery, and race”); Simard, Citing Slavery, supra note 40, at 94–96 (noting tendency of judges to ignore context of slavery); Simard, Precedential Weight, supra note 40, at 175–77 (2023) (noting that lawyers and legal scholars view slave context as irrelevant). But see George Lee Flint Jr. & Marie Julie Alfaro, Secured Transactions History: The First Chattel Mortgage Acts in the Anglo-American World, 30 Wm. Mitchell L. Rev. 1403, 1442 (2004) (noting prevalence of enslaved people as collateral).

      [128].     James Huston, Calculating the Value of the Union: Slavery, Property Rights, and the Economic Origins of the Civil War 27 (2016).

      [129].     Seth Rockman, Negro Cloth: Mastering the Market for Slave Clothing in Antebellum America, in American Capitalism: New Histories 170, 172 (Christine Desan & Sven Beckert, eds., 2018) (describing Northern manufacturing of cloth used to clothe enslaved people from Southern cotton).

      [130].     Eric Kimball, “What Have We to Do with Slavery?” New Englanders and the Slave Economies of the West Indies, in Slavery’s Capitalism: A New History of American Economic Development 181, 181–94 (Sven Beckert & Seth Rockman, eds., 2016).

      [131].     Calvin Schermerhorn, The Coastwise Slave Trade and a Mercantile Community of Interest, in Slavery’s Capitalism: A New History of American Economic Development 209, 222–24 (Sven Beckert & Seth Rockman, eds., 2016).

      [132].     Simard, Slavery’s Legalism, supra note 125, at 594–95 (describing sale and marketing of Northern supplied luxury goods to Southern planters).

      [133].     David M. Williams, The Shipping of the North Atlantic Cotton Trade in the Mid-Nineteenth Century, in Merchants and Mariners: Selected Maritime Writings of David M. Williams 53, 60–61 (Lars U. Scholl, ed., 2000).

      [134].     Michael Ralph, Value of Life: Insurance, Slavery and Expertise, in American Capitalism: New Histories 257, 261 (Christine Desan & Sven Beckert, eds., 2018).

      [135].     Kathryn Boodry, August Belmont and the World the Slaves Made, in Slavery’s Capitalism: A New History of American Economic Development 163, 164–65 (Sven Beckert & Seth Rockman, eds., 2016).

      [136].     Sven Beckert, Empire of Cotton: A Global History 140–41, 240 (2014).

      [137].     Huston, supra note 128, at 27.

      [138].     See Thomas Morris, Southern Slavery and the Law: 1619-1860, 63 (1996) (noting that enslaved people were considered personal property “for most purposes most of the time”).

      [139].     See Gavin Wright, The Political Economy of the Cotton South: Households, Markets, and Wealth in the Nineteenth Century 41 (1978) (noting the increasing importance of the value of slave property).

      [140].     At least 11,000 slave cases were published in American appellate reporters. See Simard, Precedential Weight, supra note 40, at 187 n.112; see also The Citing Slavery Project, http://www.citingslavery.org [https://perma.cc/ZE7B-T3GL]; Morris, supra note 138.

      [141].     Morris, supra note 138, at 104–13, 113–20, 132–58; see also Stephen Wilks, Private Interests, Public Law, and Reconfigured Inequality in Modern Payment Card Networks, 123 Dick. L. Rev. 307, 345 (2019).

      [142].     Morris, supra note 138, at 103.

      [143].     For more on this transition see Alexander, supra note 123, at 138–43 (1997). Alexander observes the ambivalent relationship theorists of Southern slavery had with commodification. See id. at 211–14, 232–37. This ambivalence, however, did not stop decisions from influencing future lawyers. See Simard, Citing Slavery, supra note 41, at 94–97. Other scholars have observed the influence of the business of slavery in the development of other modern economic institutions. See, e.g., Caitlin Rosenthal, Accounting for Slavery: Masters and Management (2018); Sven Beckert, Empire of Cotton: A Global History (2014); Sharon Ann Murphy, Investing in Life: Insurance in Antebellum America (2010).

      [144].     Morris, supra note 138, at 63.

      [145].     One exception were possessory security interests in which the secured lender held the collateral himself. Gilmore, supra note 56, at 24. This form of lending, however, was significantly less useful for debtors.

      [146].     McCall, supra note 69, at 72–73; Gilmore, supra note 56, at 24–25; Morris, supra note 138, at 121–24.

      [147].     Bonnie Martin, Slavery’s Invisible Engine: Mortgaging Human Property, 76 J. S. Hist. 817, 855 (2010).

      [148].     Id. at 856.

      [149].     See Flint & Alfaro, supra note 127, at 1410, 1418, 1461; Morris, supra note 138, at 124. These statutes predated those in the North. Flint & Alfaro, supra note 127, at 1410, 1418, 1461.

      [150].     Lawyers now call this a purchase-money security interest. See U.C.C. § 9-103(a)(1) (defining “purchase-money collateral”).

      [151].     Martin, supra note 147, at 823.

      [152].     Flint & Alfaro, supra note 127, at 1442.

      [153].     Leonard Jones, A Treatise on the Law of Mortgages on Personal Property (Boston, Houghton, Mifflin, & Co. 1881).

      [154].     Id. § 8 (“A bill of sale of slaves . . . was held to be a mortgage.”) (citing McNight v. Gordon, 34 S.C. Eq. 22 (1867) (enslaved person at issue)); Id. § 28 (“The real contract was a sale of the slave, conditional until a certain time, and afterwards absolute.”) (citing Moss v. Green, 37 Va. 251 (Va. 1839) (enslaved person at issue)); Id. § 31 (risk of “loss or death of slave or animal”) (citing Harrison v. Lee, 11 Ky. 190 (Ky. 1822) (enslaved person at issue); Gray v. Prather, 5 Ky. 223 (Ky. 1810) (enslaved person at issue); Berry v. Glover, 1 S.C. Eq. (Harp. Eq.) 153 (S.C. Ct. App. 1824) (enslaved person at issue); Bishop v. Rutledge, 30 Ky. 217 (Ky. 1832) (enslaved person at issue); Hart v. Burton, 30 Ky. 322 (Ky. 1832); Stone v. Willis, 43 Ky. 496 (Ky. 1844) (enslaved person at issue); Williams v. Cheatham, 19 Ark. 278 (1857) (enslaved persons at issue); and Johnson’s Ex’r v. Clark, 5 Ark. 321 (Ark. 1844) (enslaved persons at issue)).

      [155].     See id. § 711 (describing satisfaction of deficiency of “mortgagee of slaves”) (citing Moody v. Haselden, 1 S.C. 129 (S.C. 1869) (enslaved persons at issue)).

      [156].     See, e.g., Wallace S. Moyle, Chattel Mortgages, in 6 American and English Encyclopedia of Law 947, 947, 952 (Long Island, NY, Edward Thompson Co., 2d ed.  1898) (discussing mortgage on hiring of enslaved people, parol evidence of creation of security interest, applicability of security interests to living things, and disputes over enslaved children whose mother had served as collateral).

      [157].     See, e.g., Cox v. Stuart, 157 So. 460, 461 (Ala. 1934) (citing Bobb v. Bosworth, 16 Ky. 81, 81 (1808) (enslaved person at issue)); Street v. Sinclair, 71 Ala. 110, 115 (1881) (same); Lamb v. Woodry, 58 P.2d 1257, 1260 (Or. 1936) (citing Cox v. Stuart and Street v. Sinclair).

      [158].     Brown v. Lipscomb, 9 Port. 472, 473 (Ala. 1839) (enslaved person at issue).

      [159].     Id.

      [160].     Id.

      [161].     See Martin, supra note 147, at 859–65. The scale of the internal slave trade was massive. Historians estimate that two million people were sold from 1820–1860. See Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market 7 (1999).

      [162].     See Martin, supra note 147, at 859–65 (noting power of “human collateral to create financial liquidity for slaveholders and personal insecurity for the people who were mortgaged”).

      [163].     See Flint & Alfaro, supra note 127, at 1405 (discussing numerous cases involving enslaved people to find roots of “when, where, and under what circumstances did Anglo-American law adopt its filing approach to handle the nonpossessory secured transaction”); George Lee Flint, Jr., Secured Transaction History: Protecting Holmes’ Note Through the Conditional Sales Act, 44 St. Mary’s L.J. 317, 324 n.55 (2013) (using slave cases to demonstrate acceptance conditional sales by courts); McCall, supra note 69.

      [164].     Henry Herman, Treatise on Chattel Mortgages 209 (New York, Cockcroft & Co. 1877; see Jones, supra note 153, §§ 699, 705 (citing McNeal v. Emerson, 15 Gray  3 (Mass. 1860)); see also Street v. Sinclair, 71 Ala. 110 (1881) (“Upon default, it is plain, that the title to the property at law became vested absolutely in the mortgagee, the only interest remaining in the mortgagor being a mere equity of redemption.”). Nineteenth-century law used different terminology to describe secured credit relationships. For the sake of (relative) simplicity, I use modern terminology here.

      [165].     Jones, supra note 153, § 815.

      [166].     Id., § 705.

      [167].     McNeal, 15 Gray 3 (Mass. 1860); see also Jones, supra note 153, §§ 705, 815 (citing McNeal).

      [168].     See Andrew Fede, Legitimized Violent Slave Abuse in the American South, 1619-1865: A Case Study of Law and Social Change in Six Southern States, 29 Am. J. Legal Hist. 93 (1985) (discussing how law “decriminalized white violence” in many circumstances).

      [169].     See Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South 95–96 (1995) (describing how slavery helped yeoman to see themselves as “independent men and masters”); Harris, supra note 79, at 1721 (“Slavery as a system of property facilitated the merger of [W]hite identity and property.”); Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South 31–39 (2019) (noting importance of slavery to White women).

      [170].     See Davis, supra note 79, at 253 (noting fears about free Black community); Carl Lawrence Paulus, The Slaveholding Crisis: Fear of Insurrection and the Coming of the Civil War 3 (2017) (“The fear of revolt—or revolution—being mounted by the enslaved became a defining characteristic of the slaveholding South . . . .”); Jason Sharples, The World That Fear Made: Slave Revolts and Conspiracy Scares in Early America 242–43 (2020) (“As it catapulted black revolutionaries to new heights of power, the Haitian Revolution forced white people to see a new dimension of danger in slave insurrection.”).

      [171].     State v. Mann, 1 N.C. (2 Dev.) 263, 268 (1829) (enslaved person at issue).

      [172].     Leaird v. Davis, 17 Ala. 448 (1850) (enslaved parties).

      [173].     Morris, supra note 138, at 132–60.

      [174].     Leaird, 17 Ala. 448 at 449.

      [175].     Id.

      [176].     Id. at 450.

      [177].     Id.

      [178].     Bobb v. Bosworth, 16 Ky. 81 (1808) (enslaved people at issue).

      [179].     Id.; see also Ewing v. Gist, 41 Ky. 465 (1842) (enslaved awarded damages necessary for reception of enslaved person not returned after hiring).

      [180].     Satterwhite v. Kennedy, 34 S.C.L. 457, 458 (1849).

      [181].     Bobb, 16 Ky. at 81.

      [182].     Satterwhite, 34 S.C.L. 457.

      [183].     Wolf v. O’Farrel, 6 S.C.L. 151, 155 (S.C. Const. App. 1812) (enslaved parties); see also Pledger v. Mandeville, 3 S.C.L. 286 (1803) (enslaved parties).

      [184].     The court’s judges wrote in separate opinions, which was common at the time. Wolf, 6 S.C.L. at 155–56.

      [185].     Faulkners’ Adm’x v. Brockenbrough, 25 Va. 245, 247–48 (1826) (enslaved parties).

      [186].     State v. Thompson, 2 Tenn. 96, 97 (1807) (enslaved parties).

      [187].     Id. at 98. The court reasoned it did not matter whether she had agreed to go: “Where a slave is in the possession or ordinary employment of a person, and another takes such slave away, it should not be matter of inquiry with the Court whether the negro was willing to be taken or not.” Id. at 99.

      [188].     Id. at 98.

      [189].     State v. White, 2 N.C. 13 (N.C. Super. L. & Eq. 1792).

      [190].     Id.

      [191].     Thompson, 2 Tenn. at 98. It did, however, suggest that its holding would also apply to other property. Id.

      [192].     State v. Mann, 1 N.C. 263, 266, 268 (1829) (enslaved person at issue). See supra note 172 and accompanying text.

      [193].     Thompson, 2 Tenn. at 97.

      [194].     I am using the modern terminology of “adverse possession” here for clarity, although it is anachronistic.

      [195].     Kegler v. Miles, 8 Tenn. 426, 428 (1825) (enslaved person at issue).

      [196].     Id.

      [197].     Id. at 429.

      [198].     Id. The Court of Appeals of Kentucky dealt with a similar case in 1832, also concluding that a statute of limitations should take precedence over the right to recaption. The court, however, did not justify its decision in terms of slavery. See Clarke v. Baker, 30 Ky. 194, 198–99 (1832) (enslaved persons at issue) (“Five years’ adverse uninterrupted possession of slaves invest the possessor with so perfect a title that he can recover them from the former owner who may have obtained possession of them wrongfully.”); see also Rochelle v. Harrison, 8 Port. 351, 357 (Ala. 1839) (enslaved persons at issue) (“It may be asserted, as a principle which scarce admits of exception, that what the law will not accord by suit, cannot be attained by fraud or force. Whenever the title to property has once passed by an executed contract, it can not be re-vested by recaption, or by any other mode of acquiring the possession.”).

      [199].     Kegler, 8 Tenn. at 429.

      [200].     Marshall v. Penington, 16 Tenn. 424, 429 (1835) (enslaved person at issue).

      [201].     Id. at 424.

      [202].     Id. at 430.

      [203].     Id. at 427.

      [204].     Id.

      [205].     Id.

      [206].     Id.

      [207].     State v. Farnsworth, 18 Tenn. 261, 261 (Tenn. 1837); see also Neely v. Lyon, 18 Tenn. 473, 475 (Tenn. 1837) (recognizing that the Tennessee Supreme Court had “frequently and strongly repudiated” the right of recaption).

      [208].     Penington, 16 Tenn. at 427.

      [209].     41 U.S. 539 (enslaved persons at issue).

      [210].     The court had handled some prize cases. See, e.g., The Atlanta, 16 U.S. 409 (1818); see also Ammidon v. Smith, 14 U.S. 447 (1816) (recaption of prisoner); Bank of U.S. v. Tyler, 29 U.S. 366 (1830) (debtor’s prison); Farmers’ Loan & Tr. Co. v. City of Galesburg, 133 U.S. 156 (1890) (recaption of water mains).

      [211].     H. Robert Baker, Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution 104 (2012)

      [212].     Patricia A. Reid, Margaret Morgan’s Story: A Threshold between Slavery and Freedom, 1820-1842, 33 Slavery & Abolition 359, 360 (2012); Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 Cornell L. Rev. 1086, 1122 (1993) (noting that Morgan lived in “practical—though not legal—freedom”).

      [213].     Reid, supra note 212, at 360.

      [214].     Baker, supra note 211, at 103.

      [215].     Id. at 103–04.

      [216].     Reid, supra note 212, at 372.

      [217].     Baker, supra note 211, at 109.

      [218].     Id.

      [219].     Reid, supra note 212, at 360, 372; Ira Berlin, Generations of Captivity: A History of African-American Slaves 166 (2003).

      [220].     Berlin, supra note 219, at 172, 177–79. Morgan’s husband died tragically on his trip back from visiting the Pennsylvania governor to ask for help to save his wife and family. Reid, supra note 212, at 372; Baker, supra note 211, at 112.

[221].     Baker, supra note 211, at 76–77.

      [222].     Id.

      [223].     Id.

      [224].     Id.

      [225].     Id. at 112–13.

      [226].     Id. at 121–23.

      [227].     Id. at 123.

      [228].     Id. at 123–25.

      [229].     Prigg v. Pennsylvania, 41 U.S. 539 (1842); U.S. Const. art. IV, § 2, cl. 3. The case included seven separate opinions and the reported version of the case runs to 133 pages. It is not completely clear where each justice stood on all the issues raised in the case. Paul Finkelman provides a helpful breakdown of the opinions. See Paul Finkelman, Sorting out Prigg v. Pennsylvania, 24 Rutgers L. J. 605, 628–35 (1993).

      [230].     See Prigg, 41 U.S. 539 (1842) (enslaved persons at issue); see also Baker, supra note 211, at 144.

      [231].     See, e.g., Steven G. Calabresi, The Right to Buy Health Insurance Across State Lines: Crony Capitalism and the Supreme Court, 81 U. Cin. L. Rev. 1447, 1464 (2013) (reading Prigg for interpretation of Constitution); Dustin M. Dow, The Unambiguous Supremacy Clause, 53 B.C. L. Rev. 1009, 1015 (2012) (describing Prigg as related to rules of federal preemption); James G. Wilson, The Role of Public Opinion in Constitutional Interpretation, 1993 B.Y.U. L. Rev. 1037, 1076 (1993) (comity); Ernest A. Young, Is There A Federal Definitions Power?, 64 Case W. Rsrv. L. Rev. 1269, 1274 (2014) (federal power); Anthony J. Bellia Jr. & Bradford R. Clark, The International Law Origins of American Federalism, 120 Colum. L. Rev. 835, 893 n.276 (2020) (limitations of federal power).

                  Some historians and legal scholars have expended significant efforts trying to justify Story’s decision to write a seemingly pro-slavery opinion. See Holden-Smith, supra note 212, at 1088–89 (identifying this trend); see also Leslie Friedman Goldstein, A “Triumph of Freedom” After All? Prigg v. Pennsylvania Re-examined, 29 Law & Hist. Rev. 763, 768 (2011) (arguing that “the Court opinion appears as more of an antislavery decision than the revisionist view would have it and falls broadly in line with Story’s antislavery sentiments”); Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857 at 84 (2006) (“Historians criticize Story for conceding too much to slavery interests, but a softer position might have shattered his coalition.”); Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780–1861, 103–04 (1974); Peter Karsten, Revisiting the Critiques of Those Who Upheld the Fugitive Slave Acts in the 1840s and ‘50s, 58 Am. J. L. Hist. 291 (2018); Earl M. Maltz, Slavery and the Supreme Court, 1825–1861, 112–13 (2009) (“Story’s opinion is best characterized as a true compromise between the interests of the North and the South on the issue of fugitive slaves.”).

      [232].     Baker, supra note 211, at 4.

      [233].     See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 217, 645, 704 (5th ed. 2006).

      [234].     See, e.g., Mich. United Conservation Clubs v. Sec’y of State, 246 Mich. App. 82, 93 (Mich. Ct. App. 2001) (citing Mich. Farm Bur. v. Sec’y of State, 379 Mich. 387, 393 (Mich. 1967) (citing Prigg v. Pennsylvania, 41 U.S. 539, 612 (1842) (enslaved persons at issue)).

      [235].     Paul Finkelman, Robert Baker, Barbara Holden-Smith, and other scholars have recognized Prigg’s importance. Finkelman calls it “the most important Supreme Court case involving slavery before Dred Scott.” Paul Finkelman, Supreme Injustice 140 (2018); Baker, supra note 211. Historians tend to see the case exactly the way that Finkelman’s quote suggests: as part of the complicated legal negotiation over national power and slavery in the lead up to the Civil War. See, e.g., Maltz, supra note 231, at 111–13 (“Story’s opinion is best characterized as a true compromise between the interests of the North and the South on the issue of fugitive slaves.”). Both Barbara Holden-Smith and Paul Finkelman have gestured toward the commercial influence and importance of Story’s discussion of recaption. See Holden-Smith, supra note 212, at 1138–46 (emphasizing Story’s “reverence for the rights of property owners”); Paul Finkelman, Prigg v. Pennsylvania and Northern State Courts Anti-Slavery Use of a Pro-Slavery Decision, 25 Civil War Hist. 5, 13 n.24 (noting that “it is possible to see similar modes of thinking and judicial goals” in Prigg and Swift v. Tyson, 16 U.S. 1 (1842), which was decided in the same term). Understanding the protection of property not just as a peculiar concern of Story’s but as part of a broader legal commitment to enforcing the commercial law of slavery helps to explain the significance of Prigg and other self-help slave cases for the modern law of secured transactions.

      [236].     Prigg v. Pennsylvania, 41 U.S. 539, 613 (1842) (enslaved persons at issue). New York’s Chancellor James Kent had issued a similar, though more limited, holding seven years earlier. See Jack v. Martin, 14 Wend. 507, 526–30 (N.Y. 1835) (enslaved person at issue).

      [237].     Prigg, 41 U.S. at 612.

      [238].     Id. at 613.

      [239].     Id. at 540.

      [240].     Id. at 613.

      [241].     Id. at 541; Finkelman, supra note 229, at 632, tbl. 1.

      [242].     Prigg, 41 U.S. at 668 (McLean, J., dissenting); see also Finkelman, supra note 229, at 637 (analyzing McClean’s dissent). McLean also criticized Story for interpreting the Fugitive Slave Clause to allow for recaption to extend “into another sovereignty,” something that McLean maintained was “sanctioned neither by the common law nor the law of nations.” Prigg, 41 U.S. at 670 (McLean, J., dissenting).

      [243].     Prigg, 41 U.S. at 668. McClean also believed that Story’s decision authorized someone seizing an alleged fugitive to “lawfully resist any force, physical or legal, which the state, or the citizens of the state may interpose” because any interference in self-help would be hindering “the lawful prosecution of a constitutional right.” Id. at 670. These arguments were based on counsel’s insistence that it was permissible for an owner repossessing an enslaved person to disregard laws to the contrary in his recaption attempt.

                 McLean’s argument is related to the argument that Paul Gowder makes that property rights can be used as a “signal of a person’s status as beyond or beneath the protections of law.” Paul Gowder, The Rule of Law in the Real World 3, 4 (2016).

      [244].     His other arguments have also been criticized. See, e.g., Finkelman, supra note 229, at 144.

[245].   See supra notes 181–204 and accompanying text.

[246].  See Collomb v. Taylor, 28 Tenn. 689, 699 (1849). The court overturned a circuit court’s decision in that case. The Supreme Court’s vigorous defense of the application of recaption to enslaved people—it wrote that “the plainest principles of justice, and the uniform current of authority” demanded it—suggests that it felt the need to clarify a disputed area of law. Even still, it refused to extend the doctrine to excuse trespass, writing that “the safer rule in reference to this peculiar kind of property, is to deny the right of entry.” Id. at 698–99.

      [247].     Prigg, 41 U.S. at 613. Whether Story knew he was overstating the law is unclear. It is possible that he did not know about the Tennessee cases. At the time, limitations on legal publishing made caselaw less accessible.

      [248].     See supra notes 111–15 and accompanying text.

      [249].     See supra notes 111–15 and accompanying text.

      [250].     Reid, supra note 212, at 372.

      [251].     See generally Stephen Lubet, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (2010) (recounting violent resistance in Pennsylvania, Massachusetts, and Ohio); Thomas P. Slaughter, Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North (1994) (describing successful armed resistance to attempted seizure in Pennsylvania); Gordon S. Barker, Fugitive Slaves and the Unfinished American Revolution: Eight Cases, 1848–1856 (2013) (describing legal action and rhetoric in fugitive slave cases); Angela F. Murphy, The Jerry Rescue: The Fugitive Slave Law, Northern Rights, and the American Sectional Crisis (2014) (examining resistance to seizure of William “Jerry” Henry in New York); Baker, supra note 211, at 160–61 (discussing mob violence in response to attempts to seize alleged fugitive slaves).

      [252].     Prigg, 41 U.S. at 613 (emphasis added).

      [253].     See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 428 (2011) (describing the Supreme Court’s opinion as holding that “violence against blacks was ‘legal’ violence; ‘illegal’ violence was violence against whites”).

      [254].     Prigg, 41 U.S. at 613.

      [255].     See supra notes 111–15 and accompanying text (describing motivations behind common law breach of peace standard).

      [256].     See, e.g., Jack v. Martin, 14 Wend. 507 (N.Y. 1835) (recognizing constitutional right); In re Kirk, 1 Edm. Sel. Cas. 315 (N.Y. Sup. Ct. 1846) (acknowledging Prigg); State v. Hoppess, 1845 WL 2675, at *9 (Ohio 1845) (“[T]he right of recaption of fugitives from labor is secured to the new states under the constitution of the United States, to the same extent that it belongs to the original states.”); Jones v. Vanzandt, 13 F. Cas. 1047 (C.C.D. Ohio 1843) (assessing damages for harboring fugitive slaves); Driskill v. Parrish, 7 F. Cas. 1100, 1101 (C.C.D. Ohio 1845) (interpreting Prigg); Norris v. Newton, 18 F. Cas. 322, 324 (C.C.D. Ind. 1850) (confirming Prigg’s effects); Van Metre v. Mitchell, 28 F. Cas. 1036, 1041 (C.C.W.D. Pa. 1853) (hindering recapture); Rodney v. Illinois Cent. R. Co., 19 Ill. 42, 45 (1857) (mentioning recaption in interpreting Fugitive Slave Act of 1850); Ex parte Bushnell, 9 Ohio St. 77, 147 (1859) (criticizing logic of Prigg).

      [257].     Collomb v. Taylor, 28 Tenn. 689, 699–02 (1849).

      [258].     Henry v. Lowell, 16 Barb. 268 (N.Y. Gen. Term. 1853). This case is unusual in that it involves a challenge by the alleged fugitive himself.

      [259].     Id. at 270.

      [260].     See Holden-Smith, supra note 212, at 1134–46 (arguing that Story’s opinion was driven by goal of expanding federal power and protecting property rights).

[261].    See supra notes 186–208 and accompanying text.

      [262].     Cox Automotive, Loan Defaults and Repossessions Returned to Historical Norms in 2022 (June 7, 2023), https://www.coxautoinc.com/market-insights/loan-defaults-and-repossessions-returned-to-historical-norms-in-2022/ [https://perma.cc/449E-AUGJ]; Van Alst & Jurgens, supra note 16, at 1, 9–12.

      [263].     163 U.S. 537 (1896).

      [264].     See Federal Writers Project, Slave Narratives: A Folk History of Slavery in the United States from Interviews with Former Slaves (1941).

      [265].     George Gleason Bogert, Proposed Uniform Conditional Sales Act, 3 Cornell L. Rev. 1, 16 (1917) (authorizing self-help repossession without “breach of the peace”).

      [266].     2 Gilmore, supra note 56, at viii.

[267].    See supra notes 186–208 and accompanying text.

      [268].     See also Mark G. Yudof, Reflections on Private Repossession, Public Policy and the Constitution, 122 U. Pa. L. Rev. 954, 979 (1974) (“Since after the fact litigation may be rare, and invalidation even rarer, and since the costs of invalidation may be low in economic terms, a rational creditor might well conclude that there is little to fear from violation of the breach of the peace proviso.”).

      [269].     Penningroth, supra note 42, at 1243–52.

      [270].     Id. at 1247–52 (“They thought through Black people without thinking very much about Black people.”).

      [271].     Gilmore, supra note 56, at 25. See supra notes 129–40 and accompanying text; see also Karl N. Llewellyn, Problems of Codifying Security Law, 13 Law & Contemp. Prob. 687, 694–95 (1948) (discussing non-slavery related economic context on law of secured transactions).

      [272].     Baker, supra note 50, at 303. McDonnel & Nehf, supra note 63, § 8.05[2]; Alst & Jurgens, supra note 16, at 1.

      [273].     Louis Hyman, Debtor Nation: The History of America in Red Ink 21 (2011); Lendol Calder, Financing the American Dream: A Cultural History of Consumer Credit 152 (1999).

      [274].     Reyes & Headworth, supra note 17, at 8, 14. In the late nineteenth and early twentieth centuries, consumers looking to borrow from strangers relied on small-scale, exploitative lenders. See generally Anne Fleming, City of Debtors: A Century of Fringe Finance (2018).

      [275].     Hyman, supra note 273, at 20.

      [276].     Id. at 21; Martha Olney, Avoiding Default: The Role of Credit in the Consumption Collapse of 1930, 114 Q. J. Econ. 319, 320 (1999).

      [277].     Hyman, supra note 273, at 24–25.

      [278].     Sally H. Clarke, Trust and Power: Consumers, the Modern Corporation, and the Making of the United States Automobile Market 233 (2007). Most families of modest means did not own cars. Id.

      [279].     Olney, supra note 276, at 320; Clarke, supra note 278, at 255 tbl.7.7.

      [280].     Hyman, supra note 273, at 136; Reyes & Headworth, supra note 17, at 13.

      [281].     Clarke, supra note 278, at 239 tbl.7.1.

      [282].     Id. at 255 tbl.7.7.

      [283].     Reyes & Headworth, supra note 17, at 22.

      [284].     Clarke, supra note 278, at 251.

      [285].     Id.

      [286].     Reyes & Headworth, supra note 17, at 20. As the history of the rise of installment financing for car purchases illustrates, in the 1940s and 1950s, when the U.C.C. was being drafted and adopted, the installment car loan was just a few decades old. Whereas judges and scholars tell a story in which the U.C.C. merely ratified a deeply rooted common law right, it appears instead that it played an active role in solidifying a recent trend in borrowing.

      [287].     Melinda Zabritski, State of the Automotive Finance Market Q2 2024, Experian 5 (Sept. 5, 2024), 55, https://www.experian.com/content/dam/noindex/na/us/automotive/finance-trends/2024/experian-safm-q2-2024.pdf [https://perma.cc/R4AM-HGVB].

      [288].     Id. at 26, 41.

      [289].     Id. at 32, 46.

      [290].     The Household Cost of Transportation: Is it Affordable?, Bureau of Transp. Stat. (Sept. 19, 2023), https://www.bts.dot.gov/data-spotlight/household-cost-transportation-it-affordable [https://perma.cc/VAX7-M8EZ].

      [291].     Smaller/New Lenders Push Subprime Auto ABS Delinquency Auto ABS Delinquency Index Higher, FitchRatings (Nov. 27, 2023), https://www.fitchratings.com/research/structured-finance/weaker-issuer-volume-growth-affects-subprime-auto-abs-delinquency-index-27-11-2023 [https://perma.cc/XK8B-A9H4]; ABS Auto Indices, FitchRatings, https://www.fitchratings.com/structured-finance/abs/auto-indices#u.s.-auto-indices [https://perma.cc/BMG6-UENQ].

      [292].     Howard Jacob Karger, No Deals on Wheels: How and Why the Poor Pay More for Basic Transportation, 7 J. Poverty 93, 94, 109 (2003); Jane Pollard, Evelyn Blumenberg, and Stephen Brumbaugh, Driven to Debt: Social Reproduction and (Auto)Mobility in Los Angeles, 111 Annals Ass’n Am. Geographers 1445, 1449 (2020).

      [293].     See Am. Recovery Ass’n, https://repo.org/ [https://perma.cc/7NXQ-7SCN] (national organization); State Repossession Association Guide, Repo Buzz, https://repo.buzz/industry-associations/ [https://perma.cc/3GFA-V7BE] (listing thirteen state repossession organizations).

      [294].     See, e.g., Agenda, N. Am. Repossessors Summit https://www.reposummit.com/agenda/ [https://perma.cc/ATz6-Z7BG]; ARA 60th Convention Agenda, Am. Recovery Ass’n,  https://repo.org/ara-convention-registration/ara-convention-schedule-2/ [https://perma.cc/C3LH-SGME]; REPO2024 Registration is Open!, CU Repossession (Nov. 26, 2023), https://curepossession.com/repo2024-registration-is-open/ [https://perma.cc/QC4G-R7SV].

      [295].     See, e.g., Repo Buzz, https://repo.buzz/ [https://perma.cc/R85Y-XHBZ]; CU Repossession, https://curepossession.com/ [https://perma.cc/J55Y-VCMZ].

      [296].     See, e.g., Riteway Empire, https://www.youtube.com/@ritewayempire [https://perma.cc/BEN4-MWX5]; Towtruck_Dustin, https://www.youtube.com/@Towtruck_Dustin [https://perma.cc/NNY6-N9YJ]; Repo Life, https://www.youtube.com/@RepoLife [https://perma.cc/NJ53-5VZH]; Miami Repo Show, https://www.youtube.com/@miamirepo [https://perma.cc/Q4VX-MEWF]; RepoNut, https://www.youtube.com/@RepoNut [https://perma.cc/A9XS-D6LB].

      [297].     Repo America, Repo Buzz, https://repo.buzz/category/repo-america-podcast/ [https://perma.cc/JY6M-JJ6C].

      [298].     Cox Automotive, supra note 262.

      [299].     Chapa v. Traciers & Assocs., 267 S.W.3d 386, 395 (Tex. Ct. App. 2008).

      [300].     See supra notes 28–38 and accompanying text.

      [301].     Because the law gives borrowers in default relatively little recourse for lender breaches of the peace, borrowers have little incentive to challenge such breaches in court. See James L. Buchwalter, Cause of Action for Wrongful Self-Help Repossession of Personal Property, 46 Causes of Action 2d 513 §§ 29–31 (2010).

      [302].     See, e.g., Jordan Lawrence, Vehicle Repossession Leads to Deadly Shooting, One Arrest, Richland County Sheriff Says, The State (June 12, 2024), https://www.thestate.com/news/local/article289217244.htm [https://perma.cc/97W3-QCWC]l; Meghan Bunchman, Gun Pulled During Attempted Repossession at Kalamazoo Church, Wood TV (June 12, 2024), https://www.woodtv.com/news/kalamazoo-county/gun-pulled-during-attempted-repossession-at-kalamazoo-church/ [https://perma.cc/V8Z9-MQ8Q]; Repo Tow Truck Driver Dodges Tragedy as Car Flips Over, Atlanta News First (June 14, 2024), https://www.atlantanewsfirst.com/video/2024/06/14/repo-tow-truck-driver-dodges-tragedy-car-flips-over-2/ [https://perma.cc/92PA-AAVJ]; Houston Harwood, Repo Man ‘Drives Off’ with Baby Still in Mom’s Car, Evansville Police Say, Courier & Press (June 6, 2024), https://www.courierpress.com/story/news/local/2024/06/06/repo-man-drives-off-with-baby-in-moms-car-evansville-police-say-charges-daycare-epd-indiana-wolfes/73999634007/ [https://perma.cc/RK6R-8LLN]; Payton Marshall, 1 Shot in Dispute Over Car Being Repossessed at NKY Public Library, Sheriff’s Officials Say, Fox 19 (Mar. 12, 2024), https://www.fox19.com/2024/03/13/1-shot-dispute-over-car-being-repossessed-nky-public-library-sheriffs-officials-say/ [https://perma.cc/2CZX-ZHED]; Ari Hait, Port St. Lucie Man Shoots Repo Agent to Stop Him From Taking His Car, WPBF News (Jan. 26, 2024), https://www.wpbf.com/article/florida-port-st-lucie-man-shoots-repo-agent/46544551 [https://perma.cc/23S3-K2JB]; Sethanie Smith, Ole Miss Basketball Player Accused of Firing Shots During Car Repo, WJTV (Apr. 29, 2024), https://www.wjtv.com/news/state/ole-miss-basketball-player-accused-of-firing-shots-during-car-repo/ [https://perma.cc/892S-8NEP].

[303]. Credit Health During the Covid-19 Pandemic, Urb. Inst.  (March 8, 2022), https://apps.urban.org/features/credit-health-during-pandemic/ [https://perma.cc/34YN-GQPN].

[304].    Thea Garon, Young Adults Credit Trajectories Vary Widely by Race and Ethnicity, Urb. Inst. (Aug. 22, 2022), https://www.urban.org/urban-wire/young-adults-credit-trajectories-vary-widely-race-and-ethnicity [https://perma.cc/QG5G-FGAX].

      [305].     Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 9 (2018).

      [306].     Id. at 3.

      [307].     Id. at 162.

      [308].     Id. at 249.

      [309].     Alexus Bazen, How Many Cars are Repossessed Each Year? 2024, Consumer Aff. (Feb. 22, 2024), https://www.consumeraffairs.com/automotive/car-repossession-statistics.html.

      [310].     See Braucher, supra note 56, at 557 (“The combination of a vague “peacefulness” requirement and the lack of a clear, meaningful remedy has made it hard for debtors to challenge heavy-handed repossession methods.”).

      [311].     Gowder, supra note 243, at 2.

      [312].     Although consumer distrust of the legal system was not a major concern of the framers of the U.C.C., they did attempt to develop a Code that reflected real-world practices and responded to those affected by the rules. The framers’ efforts to take a practical approach to legal drafting was informed by outside consultation, but this consultation concentrated on groups, including “bar associations, large law firms, banks, commercial interest groups, and individual lawyers,” predisposed to favor much of the status quo law. William Twining, Karl Llewellyn and the Realist Movement 291–292 (2012). Consumer issues and consumers therefore played a relatively insignificant part in the drafting of U.C.C. Focused on “unification, simplification and modernization,” Llewellyn and the other drafters avoided introducing more radical, consumer-oriented reforms that might have derailed their efforts. Id. at 292. See also Braucher, supra note 56, at 557 (“The clear implication of Llewellyn’s writings is that statutes and administrative regulation can better define the goals and methods of consumer protection, at least after some experience of a particular problem has been gained.”).

      [313].     See Park, supra note 40, at 1080–90 (property casebooks); Simard, Precedential Weight, supra note 40, at 191–210 (doctrinal histories of insane delusion rule, adverse possession of personal property, and public policy exception).