“If we want to understand Black people’s demands for the rights that America denied them,” he writes, “we must pay more attention to how they talked about and used the rights that were not denied them — the associational privileges and common-law civil rights they had been exercising for generations in county clerks’ offices and church basements — rights of everyday use.”
Starting in the 1800s, Penningroth shows how enslaved people frequently made agreements with their enslavers, other White people and free Black people, and among themselves. While not legally binding, these deals were grounded in shared understandings about property and contract. These agreements became “prescriptive rights” over time through continuous and undisputed possession or use.
Jackson Holcomb, for example, owned a boat while he was still enslaved and was paid to ferry people across the Appomattox River, including a group of Confederate soldiers who were fleeing after the Battle of Richmond in the spring of 1865. “By the time the soldiers got into Holcomb’s boat in 1865, white southerners were used to seeing Black people own property and make contracts,” Penningroth writes. “Slaves participated routinely, energetically, unequally in the world of law.”
Free Black people also participated extensively in credit, debt and contracts in the decades before the Civil War. According to Penningroth, by 1860, there were more than 16,000 free Black property owners in the South who held property worth nearly $8.8 billion in today’s dollars. Freedom meant that they could ask local judges to protect their rights, and they went to court in cases involving farms, cows and myriad other types of property.
These local transactions and court cases drove Black “civil rights” in the tumultuous decades after the Civil War, Penningroth explains, even as the political and social rights of Black Americans were consistently attacked by White politicians and citizens. Every time the Holcombs bought or sold land, for example, they had a deed recorded at the Cumberland County courthouse. Importantly, while Jackson Holcomb appeared in the “colored” section of the voter roll, his family’s land transactions were in nonsegregated deed books. “It was harder to segregate some areas of law than others,” Penningroth writes. “It was easier to padlock the railcar and voter rolls than the deed books or even the courts.” This meant that Black people were part of the “chain of title,” and, Penningroth writes, “the property system’s emphasis on transparency and continuity meant that there were legal consequences to cheating, murdering, or intimidating Black landowners, even if the criminal justice system refused to act.”