In 1883, Jackson and Louisa Holcomb bought 100 acres of farmland in Cumberland County, Va., not far from where they had grown up in slavery. With earnings from their tobacco crop, over the next few decades they were able to buy, sell and mortgage more land. By 1908, they owned a remarkable 279 acres. Over time they bequeathed some of the land to their children and nieces and nephews, sold other parcels to Black neighbors, and donated some to their church.
The Holcombs were the great-great-great-uncle and -aunt of the historian and legal scholar Dylan C. Penningroth, and their story is at the heart of “Before the Movement,” a deeply researched and counterintuitive history of how ordinary Black Americans used law in their everyday lives from the last decades of slavery to the 1970s. Penningroth reframes the conventional story of civil rights, shifting the focus away from iconic figures, mass protests, strategic lawsuits and federal legislation to highlight a neglected history of deeds, divorce petitions, corporate charters and other legal rights.
“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.”
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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.”
And the Holcombs were not alone. Black homeownership climbed from 43,000 families in 1870 to more than 500,000 families in 1910 (nearly 1 in 4 Black families nationwide). Black farmers owned more than 15 million acres and roughly $208 billion in farm property in today’s dollars. Lynchings also rose sharply in these years, and not coincidentally. “Black landownership represented a threat to white supremacy,” Penningroth writes, and “lynchers often targeted successful Black farmers and businesspeople.” In light of this violence, land was more than just a financial asset, he argues — it was a “refuge from racist oppression, a source of communal pride and identity, and proof that they could be capable citizens at a time when most whites doubted it.”
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Penningroth makes expert use of underutilized sources, including deed books, civil and criminal cases, and corporate registries stored in the basements and backrooms of county courthouses. “Before the Movement” is at its best when it gives readers a glimpse of Penningroth’s historical detective work, searching clothbound docket books and neat rows of gray file boxes, trying to decipher “spidery handwriting on yellowing paper, trifolded and tightly packed, sometimes flaking away or chewed by mice and insects.”
From this archive of private-law civil rights, Penningroth persuasively argues that historians and legal scholars have overlooked how extensively ordinary Black people understood and used the law in the century before the modern civil rights movement. “We must open up our vision of Black legal lives beyond the Constitution and the criminal justice system,” he argues.
That these legal lives were more mundane than heroic is precisely the point. Penningroth’s tenacious focus on the ordinary is a rejoinder to ongoing efforts to limit African American history. As he concludes, “The basic premise of this book is that Black people’s lives are worth studying in themselves.”
Matthew F. Delmont is the Sherman Fairchild distinguished professor of history at Dartmouth and the author of “Half American: The Epic Story of African Americans Fighting World War II at Home and Abroad.”
Before the Movement
The Hidden History of Black Civil Rights
By Dylan C. Penningroth
W.W. Norton. 496 pp. $35
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