Penningroth's "Before the Movement"

Dylan C Penningroth, University of California, Berkeley, has published Before the Movement: The Hidden History of Black Civil Rights (Liveright):

The familiar story of civil rights goes like this: once, America’s legal system shut Black people out and refused to recognize their rights, their basic human dignity, or even their very lives. When lynch mobs gathered, police and judges often closed their eyes, if they didn’t join in. For Black people, law was a hostile, fearsome power to be avoided whenever possible. Then, starting in the 1940s, a few brave lawyers ventured south, bent on changing the law. Soon, ordinary African Americans, awakened by Supreme Court victories and galvanized by racial justice activists, launched the civil rights movement.

In Before the Movement, acclaimed historian Dylan C. Penningroth brilliantly revises the conventional story. Drawing on long-forgotten sources found in the basements of county courthouses across the nation, Penningroth reveals that African Americans, far from being ignorant about law until the middle of the twentieth century, have thought about, talked about, and used it going as far back as even the era of slavery. They dealt constantly with the laws of property, contract, inheritance, marriage and divorce, of associations (like churches and businesses and activist groups), and more. By exercising these “rights of everyday use,” Penningroth demonstrates, they made Black rights seem unremarkable. And in innumerable subtle ways, they helped shape the law itself—the laws all of us live under today.

Penningroth’s narrative, which stretches from the last decades of slavery to the 1970s, partly traces the history of his own family. Challenging accepted understandings of Black history framed by relations with white people, he puts Black people at the center of the story—their loves and anger and loneliness, their efforts to stay afloat, their mistakes and embarrassments, their fights, their ideas, their hopes and disappointments, in all their messy humanness. Before the Movement is an account of Black legal lives that looks beyond the Constitution and the criminal justice system to recover a rich, broader vision of Black life—a vision allied with, yet distinct from, “the freedom struggle.”

The publisher’s Q&A with Professor Penningroth is here.  The Chicago Review of Books review is here.

--Dan Ernst

Weekend Roundup

• The Library of Congress recently announced the launch of the Foreign Law Web Archive, with a collection period commencing June 20, 2016.

• Lots out this week for the the 100th anniversary of the end of World War I, including this and this on South Asian soldiers' experiences in the trenches, Anya Jabour's Nursing Clio article on an American Red Cross nurse named Mary Curry, and our blogger Mitra Sharafi's piece on the longer history of poison as a weapon. From a few years ago, here is an NEH interview with Chad L. Williams on African-American soldiers in WWI. 

• Mark Leeming, University of Sydney Law School, has posted his review of Jonathan Rose’s Maintenance in Medieval England, which appears in the Cambridge Law Journal 77 (2018): 402-05.  The review highlights the “free access to plea rolls provided by the Anglo-American Legal Tradition Archive,” about which those who attended the ASLH's Annual Luncheon from its creator Robert C. Palmer, Houston Law, in his remarks upon being named a Honorary Fellow.

• Congratulations to Deborah Hamer (William & Mary History), for winning an honorable mention for Best Article from the Society for the Study of Early Modern Women. The article: “Marriage and the Construction of Colonial Order: Jurisdiction, Gender and Class in Seventeenth-century Dutch Batavia,” Gender & History 29, no. 3 (2017): 622-640.

• Michael A. Livingston (Rutgers Law School) has posted The Other F-Word: Fascism, The “Rule of Law,” and the Trump Era, a review essay on several books “that have suggested parallels between 1930s-style fascism and present day politics, especially that of the Trump Administration,” including some of our summer reading (Timothy Snyder’s Road to Unfreedom and Steven Levitsky and Daniel Ziblatt’s How Democracies Die).  His verdict: “these parallels are generally unconvincing.”

• From the Washington Post's "Made by History" section: Daniel Rodgers (Princeton) on "What we get wrong about 'a city on a hill'"; Martha Jones (Johns Hopkins) on "when black women journalists fight back"; and much more.

• In the New York Times: an op-ed by Gregory Downs (UC Davis) and Kate Masur (Northwestern) on "How To Remember Reconstruction" (and why Congress should pass the Reconstruction Era National Historical Park Act).

• Update: John Fabian Witt on "Lincoln's Code" via YaleNews.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Archives and Dumping Grounds, Part Two

In my previous post, I wrote about the “archives” I used to research Black Litigants in the Antebellum American South. Today’s post is part two.

Photo by the author

Searching lower court records involving black litigants is tricky. Over the course of several years, I developed a method for searching for and working with local court records. Because these cases are unpublished and unavailable outside of the county and parish court of origin, I began by traveling to the clerks’ offices to locate the extant records. Typically, they are not indexed, and docket books summarizing cases are few and far between. Sometimes an entire decade (or decades) of cases is missing.

Finding cases that involved free black or enslaved litigants required examining each box, drawer, or trash bag of trial court records beginning with the earliest ones (this varied in each county, but all opened their doors and began hearing cases in the late 18th or early 19th century) and continuing until the courthouse closed its doors during the Civil War (this also varied by county). As a research method, sampling every fifth (or pick your number) box or drawer of cases would not produce representative results. Many of these records are not organized by date or type—or even organized at all. In Claiborne County, Mississippi, for example, cases from 1820 could be filed in the same drawer as cases from three decades later (and the drawer labeled “miscellaneous”).

Photo by the author

In order to get a sense of the presence of black litigants in the antebellum southern courts, the meaning of that presence, and how that presence might change over time, I had to look through everything. It took me several years (I traveled to the region and stayed two-to-four months at a time one-to-two times a year until I managed to read all of the extant records). Searching for black litigants was a daunting task because it meant reading through thousands and thousands of cases. But by law, the Mississippi and Louisiana courts had to identify the race of litigants and witnesses of color with the designation “fpc” if free and “slave” if enslaved. Of course, clerks and lawyers did not always do this. But just because the designation is missing, we cannot assume that the plaintiff or defendant was white. Indeed, black litigants were common, and many sued more than once. If the designation was missing, I attempted to ascertain an individual’s status in other ways. Then I took digital photographs of the entire case and organized those photos into separate files (such that I could easily find them later). Next, I read the case and entered a number of pertinent details into an Excel database, including: case number, name of complainant and defendant, filing dates, outcome (if known), race and gender of litigants, names of witnesses, lawyers, and judges, keywords identifying the type of case, and notes about the circumstances of the case.

In the end, I found more than 1,000 civil cases involving free black and enslaved litigants. As I have mentioned in a previous post, they sued whites and other people of color over a wide range of disagreements—from debt recovery to lawsuits for freedom. What is more, these extant cases reveal much about the networks black litigants formed, the language they used to petition the local courts, and the particular dynamics of black Americans’ legal claims-making in communities throughout the Natchez district.

Photo by the author

Finding these records is hard enough; interpreting them brings different challenges. Often the records are incomplete, missing relevant petitions or testimony. Final judgments are frequently absent, making outcomes unclear. And many cases are formulaic. Clerks, lawyers, and other officials also mediated the evidence. Moreover, it is difficult to ascertain what information court officials withheld from the record—from the common knowledge to the hearsay. Genre, form, and the type of legal action people chose to take (or even could take) also conditioned what people could say or do in court.

But as I have written in the book, within the given constraints, remarkable space exists for performing all sorts of operations. Genre limits what people can say, but it also allows people to say certain things in court and make that speech recognizable as a legal claim. Speakers can sift or manipulate facts and events as they chose to sift them (and then make a claim to what is “fact”). They can make normative claims—claims that insist that what happened is not what should have happened. In so doing, they can also invoke the state and demand that the state take responsibility for making things happen as the claimant said it should. Finally, by making claims in court, litigants compel their opponents to answer in kind. In my next post, I will discuss some of these claims.

Archives and Dumping Grounds

My post today is about “archives.” I use scare quotes deliberately here because searching for evidence of black plaintiffs in civil suits in the pre-Civil War U.S. South took me far away from the types of archives I had used in the past. Trial court cases from Iberville and Pointe Coupee parishes in Louisiana and Adams and Claiborne counties in Mississippi between (roughly) 1800 and 1860 represent the bulk of the research materials for Black Litigants in the Antebellum American South. These court cases, however, are not obtainable in any traditional archive. They are not published and searchable online or available in a climate-controlled repository such as the Mississippi Department of Archives and History. Instead, they remain in the possession of the county clerks of the courts’ offices and have not been processed, cleaned, or organized. In some places they are stored indoors in boxes and vaults (often tri-folded and wrapped in the same materials they were placed in 150-200 years ago); in other places they sit in basements without heat or air conditioning and fire or flood protection. Sometimes they are even unprotected from the elements.

Photo by the author

Some years ago, for instance, I found several boxes of cases in a storage shed on the outskirts of Plaquemine, Louisiana, where the clerk's office kept old personnel files and discarded office materials. It was raining the day I went there, and water had flooded the shed. The boxes that held these cases and several hundred others from the late eighteenth and early nineteenth centuries had rotted and the files were strewn all over the dirt floor. They were covered in bug goo and feces, by the way, and one of the boxes had a dead rat in it (I will admit to screaming when I saw this, and the woman from the clerk’s office laughed at me and told a story about the type of things she found while hunting on her family's land). They were also mislabeled and placed into county personnel files from the mid-20th century. I gathered six leaf bags full of legal records, brought them back to the clerk’s office, dried them out, cleaned them off, and relabeled and filed them as best I could (sadly not in acid free files; the clerk's office couldn’t afford it).

Photo by the author

The records were well worth the effort, not least of all because many involved criminal actions against free blacks and slaves (in many Louisiana parishes the criminal records from this period are long gone, and while my project examined civil cases I wanted to take read and photograph them for comparative as well as preservation purposes). They also included estate records from free black families dating back to the 1770s. I took digital photographs of everything, and I am glad I did. When I went back a few years later to do more research, I could not find the files.

Photo by the author

            Researching in these records often means facing situations in which you might be uncomfortable (dead rats are only part of the story): like being in a pitch dark and cramped vault with nothing but a pen light because a storm has knocked out the power (this happened more than once). Or being in a basement on a Friday afternoon sifting through cases and suddenly realizing that all of the employees have left for the weekend and you are now locked in that basement (happily, this only happened once. After that I left a note on the basement door so that someone knew I was down there). It is also sometimes difficult to explain to the clerk’s office employees what you need and why you need it. Many did not know they had records dating back to the late 18th and early 19th centuries. Others might be reluctant to let you look at them systematically (rather than requesting one case at a time). I got lucky when a family member living in the region called a local judge on my behalf, and this judge called on friends in the clerks' offices and asked them to give me unrestricted access. This was incredibly generous, because I could search things as a sort of honorary employee: I could go into their restricted areas and examine all of the extant cases; I was given a space to work for months at a time; I was not charged for copies and given permission to photograph anything I wanted; I even had access to the employee break rooms and often ate my lunch (and king cake!) with the others. It was at one of these lunches, incidentally, that I found out about the existence of the records in the Plaquemine storage shed.

Black Litigants in the Antebellum American South

Many thanks to the editors for inviting me to guest blog about my new book, Black Litigants in the Antebellum American South. Over the next few weeks, I will be sharing stories about the research I conducted and the challenges of not only finding that material but also interpreting it. I will also discuss a few emblematic individuals and their cases, as well as what I see as the significance of those cases. And I will make a plea for local court records—for their preservation, but also their importance in our research and teaching. I begin today, however, with a description of the book.

This book is a historical study of free and enslaved African Americans’ use of the local courts in the antebellum American South. Specifically, I investigate unpublished and largely unexplored lower court records from the Natchez district of Mississippi and Louisiana between 1800 and 1860 in which free black and enslaved litigants sued whites and other African Americans. This is a study of private law claims. Black plaintiffs in civil suits remain a little known aspect of the legal history of the slave South.

For those readers less familiar with this area of the Deep South, the Natchez district is the plantation region along the Mississippi River (roughly) between Vicksburg, Mississippi, and Baton Rouge, Louisiana. By the early nineteenth century, the cotton counties of western Mississippi and the cotton and sugar parishes of eastern Louisiana were emphatically slave societies: the region’s economy depended on slavery, and slaveholders’ interests dominated politics. Natchez, Mississippi, was home to “Forks-of-the-Road,” one of the antebellum South’s busiest slave markets. By the second quarter of the nineteenth century, the district’s slaveholders represented some of the largest importers of slaves in the booming domestic slave trade, and they were among the richest men in the nation.

Map courtesy of Danielle Picard

Slavery influenced every aspect of life in the Natchez district, from the realities of everyday domination to its elaboration in the black codes of the period. Lawmakers in Mississippi and Louisiana designed legislation to maintain the institution of slavery and ensure that people of African descent enjoyed few legal rights. These laws turned people into property, denied them civil and political rights, and subjected them to harsh criminal punishments. In addition, both states limited free black people's ability to seek redress in court. They also burdened them with onerous administrative and registration requirements that affected their everyday lives.

Despite the restrictions they faced and the humiliations imposed upon them, my research shows that black Americans found some legal redress for wrongs done to them and debts owed to them. Trial court records remind us that people of African descent were not just objects of law; they were wielders of it. Free blacks and slaves resided at the center of antebellum southern legal culture—as objects of regulation and punishment, certainly, and as active protectors of their own interests.

So how do we know this?

We know about this primarily through the extensive documentation produced by the civil courts in the Natchez district—in particular, the trial court records from Iberville and Pointe Coupee parishes in Louisiana and Adams and Claiborne counties in Mississippi. I chose these four counties because of their centrality to the region and their location along the Mississippi River, but also because the trial court records from this time period still exist in these locations. This is unusual. Many southern courthouses burned to the ground during the Civil War or experienced floods that destroyed the early records. In other counties in the region, I found that court employees sometimes threw away or burned old records because of the lack of storage space. Even in the four places that I selected for my research, the extant records are in danger of disappearing. (I’ll be discussing the records themselves—as well as my research process—in a future post).

Photo by the author

After digging through all the extant lower court records (often held in basements and storage sheds) from these four counties, I found over 1,000 trial court cases involving black litigants using law on their own behalf. They sued whites and other people of color to enforce the terms of their contracts, recover unpaid debts, recuperate back wages, and claim damages for assault. They sued in conflicts over cattle, land, slaves, and other property, for their freedom and for divorce, and to resolve a number of other disagreements. In addition, free people of color used the courts to register their marriages, probate their wills, donate their property to their children or wives, emancipate their family members, and request official family meetings dedicated to allocating resources. Enslaved men and women engaged their owners in courtroom battles over personal status and freedom and the status and freedom of their children and kin. And sometimes, in a few rare instances, slaves took whites to court to recover unpaid debts for money they had loaned them.

This kind of presence is unexpected. We have long viewed the southern courts as institutions that rigidly enforced racial hierarchies and protected the property interests of white slaveholders. That said, while it is certainly important to recognize the presence of black litigants in antebellum southern courtrooms, it is perhaps more important to unpack the significance of such litigation. Thus, this is not simply a story of the fact of black litigiousness. Rather, it is also a story of the meaning of black litigiousness.

The book focuses much of its attention on claims to legal personhood and civic inclusion. These were claims about who had access to the power of law, certainly, but they were also claims about who counts. These were claims to inclusion and membership. Indeed, for black litigants civic inclusion had a participatory function, one that involved the capacity to act as an independent person at law and participate in the public sphere; but civic inclusion also had a symbolic function: the recognition that this person was worthy of staking a claim.

Litigation, then, represents a moment in which white judges, juries, defendants, witnesses, and audiences in the gallery were forced to confront and recognize the claims of those they believed were intrinsically inferior. This book, at its core, is an attempt to explore the consequences of that recognition.

Rethinking the Role of State Courts in the Lives of Black Southerners: What I've Learned

I've very much appreciated the opportunity to blog about the research in my new book Litigating Across the Color Line this month. Today, on my final day of blogging here, I thought I would reflect on some of the things that I have noticed and learned about black southerners’ participation in civil cases in state courts during this project.

1) Shifts in Legal Rights Were Aligned with Voting

There was no sudden shift in what appellate civil cases between black and white southerners looked like as Reconstruction gradually ended in southern states. Instead, the shifts seem to be aligned to some extent with voting rights. The types of cases black litigants could participate in became much more narrow at the end of the 19th century as disfranchisement set in. Then, beginning in the 1920s as the Great Migration led to increases in black voting around the nation, black southerners' civil cases became much less constrained once again and began to engage a wide variety of issues. This broadening of cases continued in the 1940s as voter registration drives had some success in the U.S. South.

2) Civil Litigation continued throughout different periods, but shifted to fit the constraints of the time

Even as black southerners’ ability to litigate different kinds of civil cases in southern appellate courts widened or narrowed during different periods, African Americans continued to litigate civil cases against whites from 1865 to 1950. In other words, at no time did they actually stop interacting with state governments through the legal sphere. Instead, as their political and social constraints narrowed, they shifted the kinds of cases they litigated and how they presented themselves in their cases.

3) Black Southerners engaged with the government at multiple levels

In the cases I looked at, I found African Americans at times engaging the government at multiple levels over a single dispute– including engaging with the local, state, as well as the federal government.  The case of Henry Buie that I discussed in my blog post yesterday gives us one example of this engagement with the government at multiple levels. After his master took his mule, Henry Buie turned for assistance to the local branch of the Freedmen’s Bureau and successfully convinced them to take action in his cause. But it was not only federal power – but also state power that the freedman accessed. When his former master filed a civil suit to regain the mule, the former slave responded by hiring his own lawyer and fighting his former master’s claim in the local county court and then in the state supreme court. In this case alone, then, the suit was fought on at least three levels – before the Freedmen’s Bureau, before the local court, and before the state supreme court. In other cases, I found similar attempts to bring cases before multiple arbitrators and to attempt to pick the arbitrator that would be most sympathetic to their cause.

4) Government Institutions that seemed hostile could still be possible realms to exercise rights – if you could align your interests with the interests of those making decisions in that realm, or at least make your case seem harmless

I learned that government bodies that seem initially to be hostile to African Americans could still be institutions in which African Americans could have some success. Again and again – not only during Reconstruction, but in the two decades following as well as in the first half of the 20th century – some African Americans were able to negotiate the white-dominated southern legal system to gain decisions in their favor. To win civil cases against whites in state and county courts, black litigants often had to align their cases with whites’ interests, so that it was in the interests of the legal system to rule for them, rather than for the opposing white litigant. At the very least, they had to make it appear that ruling for them would have a net zero effect on the larger system of white supremacy. But when African Americans’ cases directly confronted the interests of larger numbers of whites in a substantial way – even when they appealed to rights such as property, they were frequently unsuccessful.

5) It was necessary to use whites to access the southern legal system and government power

In order to access government power through the courts, African Americans had to use and appeal to whites – white lawyers, white judges, white witnesses, and white jury members. Black litigants could not have litigated in southern courts without these whites. But working with whites had consequences. White lawyers limited the kinds of cases black southerners could litigate and shaped the arguments their cases could make. The important role of white witnesses in such trials also gave preference to suits in which whites agreed to testify. Moreover, black litigants’ dependence upon white juries and judges for favorable decisions at times led them to tailor their testimony and cases to their audiences, presenting themselves as more loyal or uneducated than they really were.

6) These suits were often intensely personal, involving long histories between the black and white litigants

In two-thirds of these cases during Reconstruction and about a third of cases in the two decades after Reconstruction, men and women who had been considered property now sued the very people who had owned them or their former owners’ heirs. They carried with them into court their long histories together during slavery.

7) The actions of black litigants played an important role in the outcomes

African Americans negotiated within the white-dominated courts by recognizing the interests of the people wielding power in this realm, and framing their claims to appeal to such parties. Often, black litigants had been coached by their lawyers on what to say in their testimony. But black litigants also made decisions about what to say in their testimony based on their knowledge about race relations in their communities and, at times, their understanding of relevant law and the facts of the case. Their testimony and other choices during the course of litigation often played an important role in the success of their cases.

8) Not just the usual suspects participated in civil cases. 

The final lesson I learned was that participants in the state courts went far beyond educated black men. Ordinary black men and women all played a part in the courts during the 85 years after the Civil War. During the three and a half decades after the Civil War, even the African Americans who gained a hearing of their case before a state’s highest court usually had very little formal education. Many had lived part of their lives as slaves or were the children of former slaves. In addition, in an era when white men dominated politics, almost half of these black litigants were women. Between 1865 and 1950, black women formed approximately 41 percent of African American litigants in civil cases between black and white litigants in the eight appellate courts examined.  The role of ordinary black men and women in these cases re-envisions the courts as not only a forum for test cases backed by organizations, but as a place where ordinary black and white southerners challenged each other and worked out their economic disputes against each other.

Please feel free to be in touch (contact details here) if you have any questions about my research. I will continue to release the transcripts and archival records of some key cases related to my research on my website in the coming months as well. Thank you again for the opportunity to blog here this month!