Penningroth, who teaches history and law at the University of California, Berkeley, believes that current scholars’ understanding of the emergence of the civil rights movement rests on a series of misconceptions about Black Americans’ “legal lives.” He sets out to demolish them. Even during the days of slavery, he insists, they knew a lot more about legal principles than one might imagine. From experience and observation, they developed what Penningroth calls “goat sense” (following the coinage of the Black tenant farmer Ned Cobb, the protagonist of the 1974 best seller All God’s Dangers)—a working knowledge of legal rules and concepts.
Far from avoiding the courts, they utilized all the legal tools at their disposal. From the late nineteenth century to the era of the civil rights movement, he writes, “Black people poured out their family stories” in legal cases, exhibiting a “wary faith” that the courts would uphold their claims to what he calls the mundane “rights of everyday use”—rights that derived from ownership of property, the signing of contracts, the “associational privileges” of membership in Black churches, and legal claims, such as inheritance, acquired through marriage. Rather than heroic freedom fighters courageously confronting repression or victims avoiding the courts at all costs, Black Americans emerge in this telling as ordinary folk using the law to help make the best of difficult circumstances.
Penningroth’s conclusions emerge from an epic research agenda in which he and his students examined some 14,000 legal cases, identifying 1,500 with Black litigants, most but not all in the South. These were civil litigations, matters of private law whose documentary records long lay unexamined in local courthouses. As has lately become common among historians, Penningroth intersperses his account with his own family’s experiences from the time of slavery to the twentieth century’s Great Migration as a point of departure and reference.
Before the Movement begins with a revealing incident involving Penningroth’s enslaved ancestor Jackson Holcomb, who owned a small boat in Virginia. In the final days of the Civil War, Holcomb successfully demanded payment to ferry Confederate soldiers fleeing the Union army across the Appomattox River. Legally speaking, the boat and everything else Holcomb claimed as property belonged to his enslaver. But the desperate Confederates did not challenge his ownership of a boat or his right to charge a fee for transporting individuals across the river. Whatever the letter of the law, custom throughout the slave South accepted that slaves could acquire property of their own.