Looking for Law in All the Wrong Places: Dylan Penningroth’s Before the Movement.

Carol Rose

Dylan Penningroth’s new book takes up the subject of formerly enslaved African Americans’ relationship to law, and it is both revelatory and argumentative. Penningroth bases his book on his massive exploration of musty courthouse records, especially in the South.  What he has found convinces him to reject the common view of southern Black people in the past as passive victims of a ruthlessly exploitative legal system—until the modern civil rights movement opened the courthouse door with its dramatic insistence on desegregation and equal rights.  True enough, Penningroth says, until the later 20^th century, Black people in the South did not go to the courthouse to register to vote.  But that misses the big point; as he says, they did go to the courthouse to find property records, settle contract disputes, marry and divorce, and deal with wills, all matters of the private law of everyday life. Well into the 20^th century, he points out, “civil rights” meant these private law rights, in distinction from “political rights” or “social rights.”

 
Whatever the comparison with the West Indies, Penningroth’s findings of enslaved persons’ wide-ranging property and commerce fit easily with the modern legal interest in social norms. He tells a story of the triumph of  informal property over formal law.  In the formal law, slaves supposedly could not own property; anything their made or earned belonged to their owners.  Nevertheless, Penningroth argues, white persons widely acknowledged slaves’ claims to property and contractual dealings in the antebellum period.  Why?  Because, Penningroth says, white people simply made a sensible choice.  They depended on enslaved persons to work and to produce useful goods and services; but sheer brute compulsion is likely to be an ineffective way to get people to do things, as theorists of the economics of slavery like Yoram Barzel and Stefano Fenoaltea have observed. This is because monitoring and supervision are costly—and particularly prohibitive when the desired outcome is a quality product as opposed to simple perceivable effort.  Some increments of positive incentives (i.e., allocation of property and ability to contract) are likely to be cheaper and more effective management strategies.[2]  Besides, allowing enslaved persons to work for themselves could pay off for their masters and other white people who dealt with them.  Several years ago, a student of Dirk Hartog’s, Matthew Axtell, wrote major parts of a remarkable doctoral dissertation on the maritime legal history of the Ohio River in the era before and just after the Civil War. [3]  Among other matters, he described how enslaved men in Kentucky were hired out by their owners, but negotiated their own labor terms as river boatmen, taking wages for themselves and paying the “rent” to their titular masters. (I sincerely hope Mr. Axtell reads or hears about this blog and takes time from his law practice to get back to this dissertation.) 

 
The overall picture that Penningroth paints of the slave economy is one of a negotiated truce—certainly reflecting unequal power positions, but negotiated all the same.  He shows that property is a social institution as much or more than it is a legal institution, and that property claims depend critically on social acceptance.  To be sure, the absence of law did make a difference.  As Penningroth puts it, enslaved claims to assets were not rights but privileges—widely acknowledged, but provisional, in that “privileges” implicitly located ultimate authority with some other dominant figure.  

 
Readers are likely to see an informal shadow of this rights/privilege distinction even after emancipation, when former slaves in the South formally could claim legal rights—that is, private law or “civil” rights—to deal as independent actors with property, contracts, and family matters.  Penningroth describes southern Black farmers’ steadily increasing land ownership, as well as the ways that white people needed Black property rights to be recognized, even more than during the time of slavery.  Among other matters, given the numerous transfers of property over time, white people’s own land titles depended on the acceptance of Black former owners’ rights. Meanwhile, Black purchases and sales were increasingly significant to white businesses. 

 
In Penningroth’s description, then, Jim Crow looks like another negotiated truce, with widely acknowledged Black private law rights, but with an informal shadow of the right/privilege distinction due to the superior power position of white southerners. Law unquestionably helped Black southerners, and as Penningroth so ably illustrates, Black people used private law extensively in their dealings among themselves, and even at times in their relationships with white people.  But private law was not consistently helpful, even in Penningroth's generally optimistic story.  He relates how in cases of disputes, white southerners could retaliate disproportionately through cancelled rental agreements or threatened lawsuits.  Jennifer Roback has also described how southern legislatures passed laws against outside labor recruiters and, more tellingly, against local landowners who poached Black labor from one another.[4] Such laws proved two things:  first, that white southerners needed Black labor and were willing to poach from one another to get it; but second, that Blacks’ lack of political rights meant that white legislators could try to solve a collective action problem among themselves by limiting Blacks’ economic opportunities. 

 
At one point, Penningroth makes a brief but noteworthy comment (at 204) about the Jim Crow era:  that lynchings increased as Black economic progress grew.  Lynchings were obviously outside the law, but law too undergirded backlash.  Barack Orbach has located the first movie censorship laws; they did not curtail obscenity, as one might expect, but rather prizefighting films, and especially they banned films showing Black prizefighter Jack Johnson’s humiliating defeat of the “Great White Hope” Jim Jeffries in 1910, justified as preventing violence between the jubilant Black viewers and enraged white crowds.[5]  More genteel private law too was part of the backlash against Black success.  After the Supreme Court banned racial zoning in 1917 as too great a public intrusion on property, white developers turned to racially restrictive covenants to keep Black purchasers and renters  from “invading” white neighborhoods.  As ostensibly private law arrangements, racial covenants escaped constitutional constraints until 1948, when Shelley v. Kramer made them unenforceable.  During those decades, living in white neighborhoods was not a “privilege” that many middle class white people were willing to accord to Black citizens, even those who could afford it.

 
Meanwhile the right/privilege distinction showed up among Black people themselves, to some degree as a result of gaining private law rights.  One of the major advances that came with those rights was the ability to form associations, allowing groups to exercise influence collectively.  Black churches soon became a main form of association.  But within churches, the right/privilege distinction once again reappeared in the form of strongly hierarchical—and strongly misogynous--church organization.  In a pattern that lasted at least through Martin Luther King and Malcolm X, male leaders asserted the rights of decision-making and direction, to the exclusion of women’s majorities as well as dissenting men.  As Penningroth points out, legal institutions did little to rebalance these matters, as courts generally took a hands-off approach on constitutional grounds, leaving control with incumbent autocrats.

 
There is much more to this groundbreaking book, including Penningroth’s discussion of the practice of law in the northern states.  He argues that as African-Americans became lawyers, they spent most of their practices on small-potatoes private law issues, with the big political/equal rights issues as at most a sideline.  He might have observed as well that some of the major opposition to inequality came from Black businessmen and their attorneys.  Carl Hansberry in Chicago detested racial covenants, but he also wanted to expand the scope of his real estate business.  So did the group of Black real estate professionals in St Louis who, as Jeffrey Gonda has shown, were the major drivers behind the Shelley case.[6]  Perhaps even more interesting was the approach of their attorney, George Vaughn, which differed from that of Thurgood Marshall and the NAACP lawyers. Vaughn wanted to showcase a 13^th Amendment basis to fight racial covenants, harking back to “badges of slavery,” as distinguished from the 14^th Amendment’s ban on state denial of equal rights.  The Thirteenth would have been a hard case to make against racial residential covenants (not that Fourteenth was easy), but it would have had the potential to steer civil rights attention to issues of labor, contract and property.[7]

 
Taken as a whole, then, Before the Movement uncovers throughlines of issues running from the times of slavery to the modern civil rights era.  Most important is Penningroth’s attention to the great significance for Black people of everyday legal issues about property, commerce and family, in a pattern that continued from the Antebellum period onward.  But next is his illustration that Black claims in these private law areas rested on social acceptance and social norms, whether entirely informally as in the era of slavery, or bolstered by a formal legality after the Civil War.  And third is the throughline of right vs. privilege, where Black private law claims counted in a recognized but always slightly precarious state of “privilege,” over against those who could assert superior “rights.”  The distinction was clearest between slaves and masters, but visible too in the practical attenuation of Black legal rights in the Jim Crow era, and in conflicts between Black leaders and Black parishioners in church organizations.

 
Finally, Penningroth asserts throughout the book that in their extensive use of private law, Black litigants have made contributions to that body of law; but he complains that those contributions go unacknowledged, sunk as it were, in an ocean of general legal doctrine.  But one might think it appropriate that legal institutions make no mention of race in private law unless race itself is at issue, just to avoid the implication that Black private law is distinct from white private law.   What can help to make Black private law contributions visible, however, is this brilliant book and the massive scholarly effort that it took to produce it.  For this we are all much indebted to Dylan Penningroth.

 
Carol M. Rose is Prof. of Law, Yale Law School (Emer.), and Univ. of Arizona Law College (Emer.). You can reach her by e-mail at  carol.rose@yale.edu.