By: Dylan C. Penningroth (Chapel Hill: University of North Carolina Press. $49.95 cloth (ISBN 0-8078-2797-5); $19.95 paper (ISBN 0-8078-5476-X))
| In 1862 Edward L. Pierce, an agent of the federal government in charge of freedpersons at Port Royal, declared that, by virtue of their servile status, slaves in the South were without any “notions of the sacredness of property” (115). In a pioneering study Dylan C. Penningroth demonstrates that such a sweeping conclusion reflected mistaken northern assumptions and failed to take account of concepts of property ownership among southern slaves. One is confronted immediately with a paradox. The formal law treated slaves as a form of property and never recognized the ownership of property by slaves. Yet, as the author points out, slaves were often able to participate in a significant informal economy and to gradually accumulate property. Slaves worked on their own time to raise crops, traded goods in town markets, and operated ferry services. Some slaves were even able to hire out their own time and achieve a kind of autonomy. Many whites, including masters, benefited from these informal practices and were reluctant to halt them.1 Thus, in actuality slaves were able to painstakingly acquire some property. Slaves acquired food, clothing, animals, wagons, money, and in a few instances obtained rights to land and patents. Hence, Penningroth has uncovered a striking dichotomy between law and social practice.2 This fascinating book invites inquiry into the process by which property rights are established. Absent any formal legal norms which upheld their claims, many slaves nonetheless developed a concept of property which rested upon shared understandings and community attitudes. Lacking documentation of ownership common in the formal legal system, slave ownership of property was grounded on custom, possession, and community acceptance. Both fellow slaves and whites had to tacitly acknowledge ownership claims despite the fact that such claims derived no sanction from the letter of the law. In theory any property that a slave claimed was owned by the master. Yet so pervasive and widely accepted were the informal norms governing slave property that, according to the author, masters rarely interfered with slave-owned property.3 Penningroth reminds us that formal legal instruments, such as deeds, wills, and bills of sale, do not provide the only means of defining and attaining property rights. There are many fields of property law in which physical possession is the basis for generating ownership. The most dramatic application of this concept occurred with respect to the disposition of public lands in the western states during the nineteenth century. Squatters simply occupied government-owned public lands in disregard of law, and thereafter successfully pushed for legislation recognizing their ownership claims. Perhaps the most significant example of this concept today is adverse possession, a doctrine that permits a possessor of land or of personal property to acquire ownership if such possession continues for a requisite time period and meets certain other criteria. An adverse claimant may ripen a title both hostile and superior to the claims of the owner of record. Possession is also vital in cases involving the ownership of wild animals and the allocation of water rights. Likewise, custom can play a role in defining of property rights. A long established usage which has continued with common acquiescence can acquire the force of law and furnish the basis for a proprietary claim. Consistent with this approach to acquiring property, after Emancipation ex-slaves sought to replace proprietary claims based on possession or custom with formal legal rights. This step triggered a number of quarrels in the 1860s and 1870s between ex-slaves and former masters as ex-slaves pressed for formal acknowledgment of their property.4 A second issue raised by this volume is the relationship between respect for private property and individual liberty. The Anglo-American constitutional tradition has long stressed individual property rights as a bulwark of freedom from arbitrary government. Some have even argued that property is the cornerstone of all personal freedoms. Penningroth, however, is skeptical that the libertarian dimensions of property ownership had much validity as applied to slaves. He maintains that “property ownership was generic among slaves, and, what conundrums it posed within the law, it was perfectly compatible with the institution of slavery” (77). Penningroth added that nothing slaves “did with their property weakened the slave system at all” (191). Thus, the author calls into question common assumptions about the link between a market economy and freedom.5 Penningroth may be too quick to dismiss the role of slave property ownership as a means of undermining the institution of slavery itself. The author points out, for example, that some slaves were able to hire their own time and undertook to locate employment, paying their master a portion of what they earned. This practice of hiring slaves their own time was sufficiently subversive of the regime that lawmakers tried half-heartedly to stop it. Moreover, as Penningroth notes, masters were reluctant “to depart too radically from practices that slaves considered customary” (58). Hence, as a practical matter, customs governing the access of slaves to land and to a portion of their own working time proved tenacious, and most masters decided to leave them alone. Of course, most slaves who earned property were poor, but some earned enough money to buy their freedom before the Civil War. All of this suggests that the accumulation of property and the gradual emergence of a market in which slaves could participate were gradually weakening the institution of slavery by enlarging, however slightly at first, a sphere of independence.6 Penningroth’s book in fact underscores the extent to which humans have a deep sense of property and an acquisitive instinct. Even the oppressive slave regime of the antebellum South could not eliminate these traits. The meager possessions that slaves were allowed to own by informal custom contained seeds that pointed toward the destruction of slavery as an institution. Private property enhances individual autonomy, a lesson that modern totalitarian regimes have taken to heart as they invariably seek to abolish or radically control private ownership. Given this background, it is revealing that the Civil Rights Act of 1866 sought to guarantee ex-slaves the right to make and enforce contracts, and to purchase, hold, and convey real and personal property. Congress correctly saw contracts and property as the key to material success and economic liberty. This Act was a vital step on the path to freedom because it protected the keen sense of ownership, which as Penningroth demonstrates, ex-slaves had already developed during servitude.7 Skillfully researched and cogently presented, Penningroth’s book broadens our understanding of property as a key element in the lives of African American slaves and freed-persons. It should be of interest to a wide range of scholars.8James W. Ely, Jr.Vanderbilt University Law SchoolContent in the History Cooperative database is intended for personal, noncommercial use only. 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