By Gwyneth K. Shaw
A seed planted by old family lore led Berkeley Law Professor Dylan Penningroth to hours in the records rooms of county courthouses across the South, teasing out how Black people used the levers of the law to advance their interests from the last decades of slavery through the 1970s. Last year, he outlined the ways cases involving race, slavery, and African Americans have been used to develop common law rules and hone doctrinal and theoretical problems in contract law.
Now, in a new book, Penningroth goes deeper into the rich material he found in those old records. Before the Movement: The Hidden History of Black Civil Rights explores the larger picture of how Black people worked within the laws of property, contracts, marriage and divorce, business and religious associations, and more to assert their rights — even while other parts of the legal system offered discrimination, hostility, and violence.
By exercising these “rights of everyday use,” Penningroth argues, Black Americans helped shape the law as we know it today.
Penningroth, who’s also a professor of history and associate dean of the law school’s Jurisprudence & Social Policy/Legal Studies Program, discusses the book below.
Q: Where did the idea for this book come from? I understand there were family stories that provided some sparks.
Penningroth: I had always wanted to read a book of African American history that was about African Americans — that had African Americans at the center, and not race relations. So at the highest level of generality, that’s what I was going for. Family stories probably catalyzed some of my thinking, and they certainly kept me energized along the way.
There was one in particular that I use at the beginning of the book, about my great-great-great-uncle Jackson Holcomb. During the last days of slavery, he apparently had a boat, and at least once he made a deal with some Confederate soldiers to carry them across the Appomattox River. And when they got to the other side, the soldiers paid him. I remember thinking that that was odd, and I came to realize that it was odd in some pretty particular legal ways. It seemed that the soldiers treated him as if he had the right to contract and the right to own property. I began to realize that there’s this whole world of lived legal experience that historians and legal scholars didn’t really talk about, and that set me off on the path toward this book.
Q: How challenging was it to get to the archival sources you used?
Penningroth: The book is about the period from about the 1830s through the 1970s. I used a wide variety of different sources: Some of them are traditional legal sources, like some of the major statutes governing civil rights law and appellate cases, mostly at the state level. Then there were the kinds of sources that social historians use, like sermons, memoirs, and the occasional diary.
But probably the main source — and the one that took the most time to get — was dockets and loose papers of local courts: county courts and county circuit courts. I looked at those in four states and the District of Columbia and then later added another state, North Carolina, largely working out of the state archives. Those records are challenging in a few different ways, and I think helps explain why not many people have done this kind of work before.
Although in fact, Black historians did do this work, particularly in the 1940s. Their work has been, I wouldn’t say forgotten, but it has not been as prominent as it might have been. Luther Porter Jackson, for example, went to 43 county courthouses in Virginia in the 1940s to research his book on free Negro property owners in Virginia. So in a sense, I was kind of following in the footsteps of this much older generation of Black historians.
I would go to a courthouse — I’d usually call ahead to see whether the record still existed, since sometimes they’ve burned or been rained on or thrown out. If I heard that they were there, I would fly out, rent a car, find a motel, and then talk with the clerk and deputy clerk. Once I got access to the records, this big problem presented itself, which is that none of these records identified anyone by race, and that’s a difficult thing if you’re writing a book about African Americans’ use of local courts.
So I came up with an imperfect but effective way of getting around that: I collected cases from the dockets and then looked up the names on Ancestry.com’s digitized manuscript census site. With the help of several amazing graduate students, we looked up all of the litigants whose names I was able to collect from the dockets: about 14,000 in all. Then, I would return for a second visit to the courthouse and read as many of the cases that we identified as I could.
There’s a lot of digital photos, there’s a lot of sampling and estimation. And none of this is scientific, because of course there are breaks in the record — and even when there aren’t breaks, there are differences across counties that make it difficult to compare, in terms of numbers. But it’s a pretty good sample, and I think it’s the biggest, most robust sample that’s ever been done of not just Black people’s use of local courts, but anyone’s use of local courts during that period.
A lot of it is routine stuff from the court’s perspective. But to the people who are filing, it’s anything but routine, it’s a big deal. When you get into these files, they are stories, and they give a really rich, textured view into real people’s concerns about their experiences. They also give a real, concrete sense of how people thought about law, and what they thought they could do with it. They weren’t always right about that. But it’s rare that you can get a sense of how people conceptualized this thing called the law, and you can get that from these local court records.
Q: Contract law, and contracts themselves, play a big role in this book. Can you talk about an idea you explore: That racial identity is often stripped away from the discussion of doctrine or theory, so that law students learning some major cases may not be aware they involved Black people?
Penningroth: During the process of researching and writing this book, and the article on race and contract law I published last year, I thought back on something, again, from my own family’s history that I hadn’t really thought much about before, which is that my own mother was in the first generation of Black law students to attend top law schools in any significant numbers. This is in the early 1970s, and she went to Penn. She didn’t take her J.D., and when I spoke with her about it later, she said she just decided she didn’t want to continue and become a lawyer. And I’m quite sure that’s true.
But as I was researching this, and as I heard Berkeley Law students during the summer of 2020 and even before voice their frustration at the lack of attention to race, especially in their core 1L courses, I began to think, what was it like for my mother? By then I knew that there were at least a handful of cases in each of the leading casebooks that are being used to teach contract law that do, in fact, feature African Americans as parties or that feature arguments that are rooted in longstanding debates about slavery and race. And except for Williams v. Walker-Thomas Furniture Co., those cases are not flagged as such.
When students — and this is one of their frustrations — take contract law, Williams is the one case where they know that one of the parties is Black. And of course, the irony, which they readily pick up on, is that nowhere in the report, nowhere in the casebook, does it say that Ora Lee Williams was Black. There’s this really taut and tangled difficulty that I think faculty and students have to wrestle with when they’re reading that case. It’s partly to do with the way that case is presented in the report, but I think it’s also to do with the fact that the casebooks as a whole, by presenting Williams v. Walker-Thomas as the only case involving a Black person, they present race essentially as something external, or at least marginal to contract law. And I think that frustrates students.
When I realized race and African Americans were actually already in the casebooks, I began to think about telling a story that would be essentially a genealogy of race and contract law. The story of race and contract law, at least, is a story of opportunism. In some ways, it’s pretty predictable: race, at each stage of the process going from the filing of a case up to whatever the court of final jurisdiction is, goes in and out of the record, depending on what the various players involved think will suit their needs best.
So sometimes they play it up, you know, because they think it’ll help them win the case. And sometimes they suppress it. It’s not a simple story of erasure, it’s opportunism. Telling that story of opportunism in the genealogy of race provides a richer and more useful pathway to actually incorporate race into contract law in ways that will serve the pedagogical needs of the course directly.
Let me give an example that I think is really important, because it touches on the significance of contract law for African Americans, but also on these longstanding debates about the role of contract in organizing American life and the economy. In the aftermath of emancipation, one of the first things that has to happen is that white Southern landowners need to sign work contracts with four million formerly enslaved people, and they do this in short order.
I found one of those contracts: It was between a man named William R. Baskerville and several dozen people who are named in the contract as the “Negroes formerly his slaves.” Now I was drawn to this document, mostly because my mother’s name was Baskerville, and the document came from the little town where I knew that side of our family was from, so I was quite certain that at least one of the people listed on that contract as laborers was related to me. And what you can see from that contract is the ways in which contract law could subordinate people of color without ever mentioning race.
There are a couple of things that are fascinating to me about these contracts formed in 1865-66. One is that race operated visibly in those early contracts — right out in the open — then dropped out in later ones. Another is that white people needed Black people to have rights. They could not disregard Black people’s rights. In fact, they didn’t want to disregard Black people’s rights. This is an example of what Derrick Bell called “interest convergence,” that progress in race relations will happen if, and only if, it also benefits white people. What it means is that going forward in a variety of different areas of law, white people pay attention to Black rights. Black people enter the chain of title, they’re embedded in these daisy chains of IOUs, the credit networks on which the entire Southern economy depends.
The third thing that stands out from this contract is that it has built in advantages not just of white landlords against Black workers, but also Black husbands over their African American wives and children, because the husbands sign for their dependents but the wives never sign on behalf of a husband. State law essentially creates or empowers a Black patriarchy at the same time, that it empowers a white patriarchy over all Black families.
Q: What do you think it brings to the classroom and to legal education to bring those identities back?
Penningroth: You can tell a richer story of contract law if you incorporate stories like this into the contract law curriculum. And as we think about where law school teaching should go in the wake of George Floyd’s murder, I think it’s worth noting that during a period, Jim Crow, when white people, including the police, routinely murdered African Americans, this is also a time when African Americans were using the courts in in great numbers. It’s a time when they acquired more land, in terms of acres, than they ever had, and I think even more than they have since.
So what that tells me is that police violence can coexist with African Americans using law. And I think we should be asking why? Why would African Americans turn to law in the depths of Jim Crow? The answers to that question should loom especially large in our minds at a time when there are many people, including the former president, who are working overtime to weaken Americans’ faith in the rule of law.
If we expand our notion of where minorities belong in the law, and in the law school curriculum, we can enrich the curriculum, and some of these legal concepts can be taught differently. If we select cases involving African Americans or that foreground the role of race, there’s no real reason why the classic cases need to stay exactly the same as they have since the 1870s, when these casebooks first started being written.
One question that has occurred to me is whether race was material to these cases, or in a larger sense whether it would make a difference to teach them knowing that, for example, the parties in Harrington v. Taylor, which is on the rule of past consideration (or moral obligation), that all of the parties in that case were Black. I think the answer is probably yes, because in 1945, when that case was heard, race was pervasive in nearly every other area of American life — the water fountains were segregated, why wouldn’t it matter?
Second, I know from my docket survey sample that Black people were present in local courts all across the South, and that some of these cases went into the casebook. And then there are cases where race is buried, but if you scratch a little bit, you can find it: Wolf v. Marlton Corp., which is about duress. Ricketts v. Pennsylvania Railroad, which is often used to teach the objective theory. Race falls in and falls out in opportunistic ways, and whether it would have made a difference to the judge’s decision is something that I think is ultimately unknowable. But it’s not clear to me that race did not make a difference in those cases. And given how pervasive race is in so many areas of life, maybe the burden of persuasion should be on the other side?