United States 1865-1877
With the end of the Civil War in 1865, conservative white politicians were concerned about how they would control the southern black population without the institution of slavery. Specifically, they wondered how they could keep blacks continuing to work the plantation system after slavery ended. Although all southern states eventually ratified the Thirteenth Amendment, which outlawed slavery, many southern states and local communities passed laws attempting to control the behavior of African Americans and their ability to engage in gainful employment and earn wages. Collectively these laws became known as the Black Codes, and they were the embodiment of white attempts to curb the civil rights of the former slaves. These laws made it hard for blacks to purchase land in certain areas, move from job to job, assemble even in small groups, or terminate labor contracts. Moreover, the Black Codes restricted blacks from testifying in court. The laws essentially violated the individual rights of African Americans as guaranteed by the Bill of Rights. Radical Republicans in Congress reacted to the Black Codes by passing the Fourteenth Amendment, which granted citizenship rights to African Americans, and passing the 1866 Civil Rights Act. The Black Codes helped inspire Republicans in Congress to intervene in the reconstruction of southern lives and institutions following the Civil War.
- 1851: China's T'ai P'ing ("Great Peace") Rebellion begins under the leadership of schoolmaster Hong Xiuquan, who believes himself the younger brother of Jesus Christ. He mobilizes the peasantry against the Manchu emperors in a civil war that will take 20 to 30 million lives over the next 14 years.
- 1857: The Sepoy Mutiny, an unsuccessful revolt by Indian troops against the British East India Company, begins. As a result of the rebellion, which lasts into 1858, England places India under direct crown rule.
- 1863: The world's first subway opens, in London.
- 1867: Dual monarchy is established in Austria-Hungary.
- 1867: Maximilian surrenders to Mexican forces under Benito Juarez and is executed. Thus ends Napoleon III's dreams for a new French empire in the New World.
- 1867: The Dominion of Canada is established.
- 1867: United States purchases Alaska from Russia for $7.2 million.
- 1867: Meiji Restoration in Japan ends 675 years of rule by the shoguns.
- 1867: Karl Marx publishes the first volume of Das Kapital.
- 1871: U.S. troops in the West begin fighting the Apache nation.
- 1874: As farm wages in Britain plummet, agricultural workers go on strike.
- 1877: Great Britain's Queen Victoria is proclaimed the empress of India.
- 1882: The Chinese Exclusion Act, a treaty between the United States and China, provides for restrictions on immigration of Chinese workers.
- 1884: Chicago's Home Life Insurance Building, designed by William LeBaron Jenney, becomes the world's first sky scraper.
Event and Its Context
At the close of the Civil War, the status of former slaves was in question on the national, state, and local level. Economically, the South was in disastrous shape, in part because for four years the war had prevented the normal planting, cultivation, and harvesting of crops. Many southerners questioned whether freedmen would return to the plantations to cultivate the land. White southern politicians wanted no interference from Congress regarding how they addressed the status of African Americans during this time. In fact, many southern states passed the Thirteenth Amendment outlawing slavery under the assumption that the federal government would not attempt to create laws pertaining to the social status of former slaves. President Andrew Johnson, himself a southern politician, was sympathetic to this view and considered Reconstruction and the status of African Americans in the South a matter best settled by the southern states and communities themselves.
Without slavery, white southerners feared that a free black population would reject their authority, especially where labor was concerned. Freedom of movement also posed a problem to southern white politicians during this time. They feared that the black population in the South would be drawn to work in cities and not stay in the rural South, so they looked to legislative measures to force the black population to work on the plantations.
African Americans, however, wanted to negotiate their labor. They did not want to continue to work 16-hour days during harvest season, and they expected southern planters to treat them with dignity and respect. Many other blacks wanted to leave the rural South altogether and try to find employment opportunities in both southern and northern cities. Whites, however, viewed blacks in paternalistic terms, considering them little more than children. While blacks wanted to test their occupational opportunities in the urban centers of the nation, whites demanded that they stay in the rural South where they had always worked. Whites did not believe blacks were capable of making informed decisions as to how best to exercise their labor. Many whites believed that blacks were naturally lazy and shiftless, and they feared that blacks would avoid work without the structure of the slave system. In sum, freed blacks and politically powerful whites in the South shared conflicting perceptions of the place of black labor in the South following the Civil War.
Fearful of a future they could neither accurately predict nor effectively control, local communities in the South passed a number of laws in 1865 restricting the movement of African Americans, penalizing them for vagrancy, and limiting their opportunities for land ownership and for participation in skilled urban professions. These laws were intended to keep blacks tied to southern plantations as a source of labor.
Creating the Black Codes
Local laws regarding governance of the newly freed slaves were not widespread, and soon white southerners began to clamor for solutions from their state legislatures. Mississippi and South Carolina were the first states to respond with a series of laws known as Black Codes. Mississippi required all African Americans to carry with them at all times evidence that they were gainfully employed and married, if they were living with a person of the opposite sex. They were also required to prove they had a place to live. If black workers quit their jobs, they could be forced to pay back wages already earned or suffer arrest. White politicians who drafted these measures admitted that they wanted to create laws that were as close to slavery as possible. Most white southerners agreed with these measures. Armistead Burt, a moderate constitutional lawyer from South Carolina, helped draft his state's Black Codes. Ironically, Burt was eventually appointed to the judiciary by Republican administrations later in the 1860s.
In sharp contrast to how vagrancy was interpreted and defined in other parts of the United States, the Black Codes legally defined unemployed blacks as vagrants and thus subjected them to punishment under the law. Northerners rarely directed vagrancy statutes against the unemployed; instead, they typically punished prostitutes and criminals as vagrants. In Mississippi, if African Americans were convicted of vagrancy, they were charged with a fine. However, if they were unable to pay that fine, an employer could pay the fine for them and force the individual to work off the debt, with interest. In other places, reminiscent of the antebellum slave auctions, local law enforcement officials auctioned off blacks who were convicted of vagrancy to employers who placed bids on their labor. Sometimes these prosecutions became festivals. In fact in many places, like Lynchburg, Virginia, and Macon, Georgia, the mayor of the town was the person in charge of arresting the "vagrant," placing him in irons, parading him through the center of town, and then locking him in jail. Louisiana, however, was an exception to this rule. Louisiana law never specified that vagrancy laws were to be applied to blacks; however, in practice the vagrancy law applied only to them. Black Codes also made it illegal for an African American laborer to break a labor contract. Both blacks and whites frequently entered into time-specific contracts, but African Americans, unlike whites, were prevented by law from breaking or renegotiating their contracts. If they did not work their full contract, law enforcement could legally force black workers to complete the work in question or place them in custody.
In cases of legal disputes, blacks could testify in court, but only against other African Americans, and they had to have their case tried before all-white juries. According to some Black Codes, African Americans could not serve on juries at all. In Alabama the law required that black children work for their parents' former masters as apprentices or give their family's former master the option to refuse such work.
The Black Codes also made it difficult, and sometimes impossible, for African Americans to purchase property. In fact, the restrictions were so severe in some areas that blacks were effectively tied to the plantation system as cheap labor.
All aspects of the relationship between employer and employee were detailed in the Black Codes. In South Carolina, Georgia, and Mississippi, politicians went to great lengths to define the obligations servants owed masters and masters owed servants. According to Dan T. Carter, black workers were mandated by law to be "honest, truthful, sober, civil, and diligent." If blacks did not display these virtues when interacting with their employers, they could be prosecuted. Employers also had to be honest and committed to the best interests of their black employees. Technically, employers could also be prosecuted if they committed moral or social transgressions with black employees, yet legal reprisals against white employers rarely occurred. Within these codes, employers were designated as the sole authority in times of disputes between black employees. In South Carolina working conduct was meticulously spelled out. Employers had to specify in contracts how long black workers were to work each day, the amount of pay they were to receive, and the conditions under which they were to work. In fact, the South Carolina legislature went so far as to legislate that employers could not force their black workers to work in the rain, snow, or other poor environmental conditions, and employers could not terminate old or infirm African Americans. Employers had to continue to assist aged and sick blacks under their supervision.
Additionally, in Mississippi and Florida, the Black Codes defined racial status. Anyone with any black blood was considered black according to the law and subject to the provisions of the Black Codes. Since these laws were targeted at blacks, southern legislators wanted to be sure that no African Americans would try to claim white parentage. These laws also sought to outlaw interracial marriage. In North Carolina a person who performed a marriage for a white and black couple could be fined $500. In Georgia they could not only be fined but could also suffer incarceration. In North Carolina a black man convicted of raping a woman of any race could be hanged, while a white man convicted of rape would be fined and suffer a lashing. In other states the Black Codes restricted African Americans from buying liquor and firearms.
These types of discriminatory laws created constitutional problems for federal officials in the South. Daniel E. Sickles and Alfred H. Terry, military officials serving in the South during this time, voided these laws because they violated the right of equal protection under the law. Southern lawmakers maneuvered around these constitutional problems by voiding the specific legislation that applied to African Americans only. In order to keep the spirit of the legislation, southern politicians rewrote many of the Black Codes to remove the specific references to blacks and replaced them with racially neutral language. Yet in application, these laws strictly applied only to African Americans. In turn, southern courts upheld many of these laws without ever mentioning them as race legislation.
Even with these laws in place, many southern whites found it difficult to force blacks to abide by them and maintain strict labor discipline. Many southern planters noted that they could pass legislation, but they could not convince blacks to remain on the land and work the plantations. Some African Americans who objected to the laws simply refused to abide by them. Many blacks in Mississippi signed agreements to work on the land in return for removal of the Black Codes. Black politicians of the time frequently made references to the Black Codes as evidence that for all practical purposes, blacks were still not free in the South. Black congressman Josiah Walls observed that these actions by southern whites forced black voters away from identifying with the Democratic Party. As a result, blacks in the South drifted to the Republican Party for solutions and expected the federal government to intervene against state interference in civil liberties.
For Republicans in Congress, the Black Codes represented a turning back of the clock on the progress made during the Civil War. Northerners believed that the Civil War was fought in part to establish a system of freed labor in the South. Since the Black Codes were aimed to restrict the labor of African Americans, Republicans felt that this betrayed the true mission of the Civil War.
In reaction to the proliferation of the Black Codes throughout the South, Senator Lyman Trumbull, chair of the Judiciary Committee, drafted two bills, one to create the Freedman's Bureau, and the other, the 1866 Civil Rights Act. Both measures were meant to undo the damage of the Black Codes. The Freedman's Bureau was charged with assisting former slaves in their adjustment to freedom. While handling a myriad of responsibilities, the Freedman's Bureau had the authority to arbitrate labor disputes between blacks and their white employers as well as to negotiate labor contracts on behalf of black workers in the South. The Civil Rights Act of 1866 was meant to nullify the Black Codes and guarantee individual rights and protection to blacks in the South.
President Johnson consistently and emphatically believed that issues of black status were best arbitrated by southern legislatures and were not the responsibility of the federal government. He vetoed both of the measures sponsored by Trumbull. Republicans were shocked by Johnson's reaction and as a result of his vetoes, Republicans in Congress moved to wrest power over Reconstruction away from Johnson and into the hands of Congress. This struggle culminated in Johnson's impeachment trial, which was spearheaded by radical Republicans such as Thaddeus Stevens and Charles Sumner.
Impact and Legacy
Although the Black Codes were a product of southern fears that blacks would refuse to work the land in the South, they also had a national impact. Because of the bitterness of this Reconstruction experience, southern blacks learned to be suspicious of local and state governments and looked to the federal government to offer aid and assistance in disputes with local and regional authorities. Additionally, the Black Codes helped to redefine the national applications of vagrancy laws. Prior to this period, vagrancy laws were primarily used against petty criminals or prostitutes. However, after Reconstruction, northern communities and states began to apply vagrancy laws to workers who organized strikes or union leaders who demanded high wages and better working conditions. Within the South, although many of the Black Codes disappeared, vagrancy laws targeted at blacks were still a very real problem for African Americans well into the twentieth century. The system of convict leasing had its foundation in the Black Codes. Many legal and criminal justice scholars argue that the strained relationship between blacks and the law today has its foundation in these Black Codes, a sad legacy of Reconstruction.
Burt, Armistead (1802-1883): Burt was a lawyer and politician from South Carolina and represented his state in Congress from 1843 to 1853. He drafted South Carolina's Black Codes during Reconstruction.
Johnson, Andrew (1808-1875): Johnson was a politician from Tennessee who supported the Union during the Civil War. Abraham Lincoln selected him as his running mate in 1864, and he succeeded to the presidency upon Lincoln's death in 1865. Since Johnson was a long-time Democrat, he frequently clashed with Republicans in Congress and even with his own cabinet. He believed that Reconstruction was a "states' rights" issue, so he refused to interfere with the way southern states treated their black populations. He staunchly refused to use the power of the federal government to rescind the Black Codes.
Kenner, Duncan F. (1813-1887): Kenner was a sugar plantation owner and politician from Louisiana. He served in the Louisiana legislature and the Confederate Congress. He was responsible for drafting Louisiana's Black Codes during Reconstruction.
Sickles, Daniel E. (1825-1914): Sickles was a northern Democrat and served in the Civil War as a general. He periodically served as a representative in Congress for the state of New York both before and after the Civil War. As a federal official during Reconstruction, he suspended the Black Codes of South Carolina.
Stevens, Thaddeus (1792-1868): Stevens was a lawyer and politician. He was a representative from Pennsylvania, first as a Whig and later as a Republican. He was a member of the Radical Republicans who wanted to wrest control of Reconstruction away from the president. Because of issues such as the Black Codes, Stevens spearheaded the attempt to impeach and remove Andrew Johnson from office.
Sumner, Charles (1811-1874): Sumner was a senator from Massachusetts. He was one of the founders of the Free Soil Party and later the Republican Party. He was part of the radical wing of the Republican Party who wanted to control Reconstruction and eliminate the Black Codes in the South.
Terry, Alfred H. (1827-1890): Terry was a Civil War general and lawyer. He overturned the Reconstruction Era vagrancy laws in Virginia because he believed they reinstituted slavery.
Trumbull, Lyman (1813-1896): Trumbull was a senator from Illinois. Although he switched back and forth from Democrat to Republican several times in his career, he was known as a moderate politician. As the chair of the Judiciary Committee, he drafted the Civil Rights Act of 1866 as a way to protect African Americans from the Black Codes and affirm their equal protection under the law.
See also: Abolition of Slavery, United States.
Carter, Dan T. When the War Was Over: The Failure of Self-Reconstruction in the South, 1865-1867. Baton Rouge, LA: Louisiana State University Press, 1985.
Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863-1877. New York: Harper and Row Publishers, 1988.
Litwack, Leon F. Been in the Storm So Long: The Aftermath of Slavery. New York: Vintage Books, 1979.
Rabinowitz, Howard N. Race Relations in the Urban South,1865-1890. New York: Oxford University Press, 1978.
Trefousse, Hans L. Andrew Johnson: A Biography. New York: W. W. Norton and Company, 1989.
Wharton, Vernon Lane. The Negro in Mississippi: 1865-1890. Chapel Hill, NC: University of North Carolina Press, 1947.
Carter, Dan T. "Fateful Legacy: White Southerners and the Dilemma of Emancipation." Proceeding of the South Carolina Historical Association (1977): 49-63.
Oakes, James. "A Failure of Vision: The Collapse of the Freedman's Bureau Courts." Civil War History 25 (fall 1979): 66-76.
Richardson, Joe M. "Florida Black Codes." Florida Historical Quarterly 47 (summer 1969): 365-379.
Sansing, David G. "The Failure of Johnsonian Reconstruction in Mississippi, 1865-1866." Journal of Mississippi History 34 (summer 1972): 373-390.
Sclomowitz, Ralph. "Planter Combinations and Black Labour in the American South, 1865-1880." Slavery and Abolition 9 (fall 1988): 72-84.
Sowle, Patrick. "The Abolition of Slavery." Georgia Historical Quarterly 52 (spring 1968): 237-255.
In the United States, the term black codes usually refers to statutes designed to regulate and define the status of free blacks. Black codes were found in some antebellum northern states, all the antebellum slave states, and, immediately after the Civil War, in most of the former slave states. In some antebellum slave states, black codes were incorporated into the laws regulating slaves, which were known as slave codes. Louisiana inherited the French Code Noir, which regulated both slaves and free blacks. After the Civil War, most of the former slave states adopted new black codes, which were designed, as much as possible, to re-establish slavery. The purpose of these codes differed significantly from antebellum codes, however. The antebellum codes discouraged or even prohibited African Americans from moving to particular states, and they provided disincentives for blacks to remain in the states where the codes existed. They were, in other words, designed to oppress blacks and to either diminish or eliminate the small free black population in the South and in the few Northern states that passed such laws. In contrast, the South’s postwar black codes were designed to rigidly structure the lives of former slaves and prevent them from leaving the South.
The reasons for this difference are economic. Ante-bellum Southern lawmakers believed that free blacks undermined the stability of their society and threatened the institution of slavery. There were about a quarter of a million free blacks in the antebellum South, and most whites believed that they were not necessary to the economy. Thomas Jefferson expressed the common view of antebellum southern whites when he told a correspondent that free blacks were “as incapable as children of taking care of themselves” and that they were “pests in society by their idleness, and the depredations to which this leads them.” After the war, however, Southern whites needed the labor of millions of recently emancipated African Americans, and the postwar black codes were therefore designed to prevent free blacks in the South from moving elsewhere or having any economic independence.
The postwar black codes disappeared after the adoption of the federal Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment in 1868. However, after Reconstruction all of the former slave states as well as West Virginia and, after it gained state-hood, Oklahoma, would adopt elaborate systems of segregation, which had some of the elements of the older black codes, but were different in significant ways.
In 1804, Ohio passed an act “to regulate black and mulatto persons.” This law became the prototype for subsequent laws passed in Ohio, Indiana, Illinois, and the Michigan Territory. A few other states adopted scattered provisions from these laws, but they never had full-fledged black codes. The 1804 Ohio law required blacks migrating to the state to provide proof that they were free, and not fugitive slaves. Any white hiring a black who did not have such proof would be fined up to fifty dollars. On its face, this law could be seen as a good faith effort to help masters from Kentucky and Virginia, whose slaves might try to escape to Ohio. In fact, this law and others that followed were designed to discourage or even prevent black migration into the new state. An 1807 law raised the fine for hiring an undocumented free black to one hundred dollars. This law also required migrating blacks to find two sureties to guarantee their “good behavior” by signing a surety bond for five hundred dollars. This bond did not require that any cash change hands—bond sureties merely promised to pay the county up to five hundred dollars if the free black migrant ever needed public assistance or did not maintain “good behavior.” There were several ways to avoid actually having to pay on the bond, but the law still presented a severe limitation on blacks coming to the state. Subsequent amendments to these laws prevented blacks from serving on juries and testifying against whites, as well as severely limiting their access to public schools. Although discriminatory, these laws did not prevent blacks from owning real estate, entering professions (including law and medicine), or exercising the freedoms of speech, press, assembly, and worship. Moreover, once legally present in a state, the black codes of the North did not inhibit their geographic mobility.
These laws were generally ineffective in inhibiting the growth of the free black population. From 1803 to 1860, Ohio’s black population actually grew at a slightly faster rate than did its white population. Between 1830 and 1860, Indiana, Illinois, and Ohio all saw growth in their black populations of over 300 percent. There is little evidence that migrating blacks were usually asked to prove their freedom, or that anyone enforced the requirement that migrating blacks find sureties to sign bonds for them. There are no recorded cases of any whites being fined for hiring blacks who failed to provide proof of their freedom. Iowa, California, and Oregon also adopted some aspects of the Northern black codes, although Iowa and California abandoned virtually all of these rules before or during the Civil War.
Michigan repealed its black laws almost immediately after its admission to the Union, and Ohio did the same in 1849. The Ohio black law repeal was part of an elaborate legislative compromise that also sent the abolitionist Salmon P. Chase to the U.S. Senate. Only Indiana and Illinois retained their discriminatory laws until after the Civil War.
Legal discrimination against African Americans in the North had subsided by the end of the Civil War with the exception that blacks could not vote or serve on juries in most states. These legal disabilities disappeared after the ratification of the Fourteenth and Fifteenth Amendments, in 1868 and 1870, respectively. After 1870, some Northern states still prohibited marriages between blacks and whites, and schools were segregated in some states, but otherwise most remnants of the black codes were no longer on the books. In the 1880s and 1890s almost every Northern state passed civil rights acts that prohibited discrimination in public accommodations. Michigan banned segregated education and specifically allowed for interracial marriages. Widespread social discrimination remained, but except for education and marriage regulations in a few states, this discrimination was not openly enforced, and it often took place in violation of the law.
In 1860 there were nearly four million slaves and just over 250,000 free blacks in the South. Southern whites considered free blacks to be a dangerous class that threatened social stability, for they believed that free blacks, by their very presence, fostered discontent among those blacks who remained enslaved. Whites also believed free blacks were likely to start rebellions. Thus, the purpose of Southern black codes (as opposed to slave codes) was to suppress free blacks, prevent them from moving into the state, and make them so uncomfortable that they would leave.
Almost every slave state made it illegal for a free black to move into the state, and all of the slave states with ocean ports passed laws requiring the incarceration of any free black sailor who entered the state while serving on a ship. South Carolina set the standard for such laws in 1822 by requiring that ship captains bring their black sailors to the local jail, where they would be held for a fee until the ship was ready to set sail. If the fees were not paid, the black sailor would be auctioned off for temporary service and then expelled from the state. Similar rules applied to emancipated slaves. By 1860 most of the eleven states that formed the Confederacy prohibited the emancipation of slaves within their jurisdiction. Thus, if a master wanted to free his slaves he had to remove them from the state, either before emancipating them or immediately afterwards.
Southern states also prohibited free blacks from engaging in professions that might enable them to foster or aid slave revolts. Thus free blacks could not be pharmacists, gunsmiths, printers or publishers, or operate taverns or places of entertainment. Mississippi made it a crime for blacks to even work for printing offices. Georgia prohibited free blacks from being masons or mechanics, or from contracting to build or repair houses. Most of the slave states prohibited free blacks from learning to read or write. They could also be severely punished for owning antislavery literature. Under a Mississippi law of 1830, whites who circulated “seditious pamphlets,” which would have included antislavery pamphlets, could be jailed, but free blacks were to be executed for the same offense. In 1842, Virginia made it a felony for free blacks to receive abolitionist material in the mail.
Free blacks faced other criminal penalties that free whites did not face. Alabama made attempted rape a capital offense for free blacks but not for whites. A number of states followed Virginia’s rule of whipping free blacks for minor offenses, rather than giving them jail terms or fining them as they would with whites. A Georgia law prohibited anyone from selling goods to slaves who did not have written permission from their masters to purchase such goods. Whites might be fined for this, but free blacks who sold goods to slaves would be whipped. While most states prohibited private gambling, the crime carried a greater punishment if a white gambled with a free black.
Such rules were not limited to the Deep South. In the 1840s, Missouri prohibited free blacks from entering the state, made it a crime to “keep or teach any school for the instruction of Negroes or mulattoes in reading or writing,” and prohibited free blacks from holding religious services without a law enforcement or judicial officer being present. In 1859, Arkansas passed a law “to remove the free Negroes and mulattoes from the state.” However, secession and the Civil War prevented the implementation of this law.
The most important outcome of the war was the emancipation of four million formerly enslaved African Americans. The loss of the war and the abolition of slavery immediately and dramatically affected Southern society. Emancipation upset the system of racial control that had kept blacks subordinate to whites since the seventeenth century, and it also destroyed the economic relationship that allowed planters to count on a pliable and ever-present source of labor. With slavery gone, the legal status of the freed men and their role in the postwar South was uncertain. Immediately after the war, Southern legislatures began to adopt “black codes” to define the status of former slaves, to insure that the former slaves would continue to provide labor in the South, and to cope with the emerging problems resulting from emancipation.
The new black codes did give former slaves some rights. For example, the laws not only allowed African Americans to marry each other (but not whites), they also declared that all slaves who had lived as married couples would be considered legally married. The black codes also gave the former slaves some other rights. The end result, however, was to give former slaves most of the responsibilities of freedom, but few of the benefits. Mississippi’s laws of 1865—the first adopted in the postwar South—illustrate the nature of these new black codes.
An 1865 Mississippi law, misleadingly titled “An Act to confer Civil Rights on Freedmen,” declared that blacks could “sue and be sued” in all state courts. This law gave the freedmen rights they did not have as slaves, but it did not give them equal rights. For example, the law allowed them to testify only in cases involving blacks, and it prohibited them from serving on juries. It allowed the freedmen to acquire and dispose of property “to the same extent that white persons may,” but at the same time, it prohibited freedmen from renting any land, except in “towns or cities.” In other words, free blacks could not rent farm land. In the overwhelmingly rural Mississippi, this meant freedmen would become a peasant class, forced to work for white landowners and unable to acquire land on their own.
Another provision of this law required that all labor contracts made with freedmen lasting longer than a month had to be in writing, even though most freedmen could not read and write. They were therefore at the mercy of unscrupulous whites, who could put almost anything into a written contract, with the black who signed the contract not knowing what it really said. This law also provided that any freedman who quit before the end of the term of a contract would “forfeit his wages for the year,” including those earned up to the time he quit. In a provision similar to the antebellum slave codes, this law obligated “every civil officer” to “arrest and carry back to his or her legal employer any freedman, free negro or mulatto, who shall have quit the service of his or her employer before the expiration of his or her term of service.” This effectively made the free blacks of Mississippi slaves to their employers, at least for the term of their employment. Anyone attempting to hire a black under contract to someone else was subject to a fine, jail term, and civil damages.
Another Mississippi statute allowed counties to apprentice African-American children if their parents appeared too poor to support them. To many, this appeared to be an attempt to re-enslave the children of the freedmen. Still another statute, also enacted in 1865, declared that any blacks who did not have a labor contract would be declared vagrants and subject to fines or imprisonment. This law provided punishments for free blacks who were “found unlawfully assembling themselves together either in the day or night time,” whites who assembled with such blacks, or whites and blacks who married or cohabitated.
Other states adopted laws with similar intent but different provisions. Rather than prohibiting blacks from renting land, South Carolina prohibited them from working in nonagricultural jobs unless they paid special taxes that ranged from $10 to $100. South Carolina also enacted harsh criminal laws that were aimed at blacks. The stealing of a hog could lead to a $1,000 fine and ten years in jail. Other crimes had punishments of whipping, the stocks, or the treadmill, as well as fines and long prison terms. Hired farm workers in South Carolina could not even sell farm produce without written authorization from their employers. Other provisions of the law created special taxes and fines for blacks, as well as imprisonment or forced labor for those who lacked the money to pay them. Like Mississippi, South Carolina also provided for the apprenticing of black children. These, and similar laws, created something close to a reimposition of slavery in South Carolina. In 1865, Louisiana and Alabama adopted laws similar to those of South Carolina and Mississippi.
The black codes of 1865 shocked the North. In South Carolina, General Daniel E. Sickles, who was serving as the military governor of the state, suspended the law, and even some white governors, including William L. Sharkey of Mississippi and Robert Patton of Alabama, opposed some of the more blatantly discriminatory laws. In Congress, Republicans responded by introducing legislation that led to the Civil Rights Act of 1866, and eventually to the Fourteenth Amendment.
In 1866 the rest of the former Confederacy adopted black codes. Florida’s code was as harsh as those of Mississippi and South Carolina. The Florida code provided whipping, the pillory, and forced labor for various offenses. Florida prohibited any blacks from moving into the state, prohibited African Americans from owning firearms, and allowed the creation of schools for blacks, while prohibiting the use of state money to pay for them.
Other states were more discreet in their legislation, trying to avoid giving ammunition to Republicans in Congress who were growing increasingly impatient with the South’s attempts to reimpose bondage and oppression on the freedmen. Virginia’s vagrancy law carefully avoided any reference to race, but still allowed forced labor and was clearly directed at the freedmen. Not surprisingly, General Alfred H. Terry, one of the military commanders in Virginia after the Civil War, suspended its operation because he saw that the law was subterfuge for an attempt to reenslave blacks. During the war Terry had pushed for the enlistment of blacks, and was deeply sympathetic to black equality. Two other generals, in other parts of Virginia, however, allowed it to go into force. Tennessee’s new criminal code provided the death penalty for breaking and entering with the intent to rob, for robbery itself, and for horse stealing. This law did not use any racial terms, but was clearly aimed at blacks. Similarly, Georgia and North Carolina tried to avoid the use of racial terms that might have jeopardized their chances of readmission to the Union. Nevertheless, none of the former Confederate states were ready to have racially blind statutes, much less racially blind justice. North Carolina’s law, arguably the least offensive, nevertheless provided a death penalty for blacks who raped whites, but not for whites who raped whites or whites or blacks who raped blacks.
Like the 1865 laws, those passed in 1866 regulated the movement of blacks, their ability to live where they wished, and their ability to sell their labor on an open market. All of the 1866 laws also tried to create racial controls to keep African Americans in a subordinate role, even as they tried to avoid the appearance of racial discrimination.
These laws were the subject of investigation by Congress’s Joint Committee on Reconstruction. Congressional responses to these laws (coming out of the Joint Commit-tee’s report) included the passage (over President Johnson’s veto) of the Civil Rights Act of 1866 and the drafting of the Fourteenth Amendment, which Congress sent to the states in 1866. By 1867, Southern legislatures had repealed most of the provisions that designated specific punishments by race. But even without racial designations, courts were able to enforce the codes to keep blacks subordinate. Even without racially specific language, courts continued to apply solely to African Americans provisions of the black codes regulating vagrancy, contracts, and children. In 1868 the states ratified the Fourteenth Amendment, and in 1870 the Fifteenth Amendment led to the enfranchisement of black adult males. In the next few years, what remained of the black codes disappeared. After 1877 the South gradually reimposed those provisions of the black codes that segregated blacks and regulated labor contracts. Such laws led to peonage and a second-class status for Southern blacks in the late nineteenth and early twentieth centuries.
Benedict, Michael Les, and John F. Winkler, eds. 2004. The History of Ohio Law. Athens: Ohio University Press.
Finkelman, Paul. 1986. “Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North.” Rutgers Law Journal 17: 415–482.
———, ed. 1992. Race, Law, and American History, 1700-1990. Volume 3, Emancipation and Reconstruction. New York: Garland.
Finkelman, Paul, and Martin J. Hershock, eds. 2006. The History of Michigan Law. Athens: Ohio University Press.
Middleton, Stephen. 2005. The Black Laws: Race and the Legal Process in Early Ohio. Athens: Ohio University Press.
Nieman, Donald. 1979. To Set the Law in Motion: The Freedman’s Bureau and the Legal Rights of Blacks, 1865–1868. Millwood, NY: KTO Press.
U.S. Congress. 1868. Report of the Joint Committee on Reconstruction. Washington, DC: Government Printing Office.
Wilson, Theodore B. 1965. The Black Codes of the South. University, AL: University of Alabama Press.
Black codes were laws passed to regulate the rights of free African Americans in the antebellum and post–Civil War eras. Before the Civil War, a number of midwestern states adopted black codes (or black laws) to inhibit the migration of free blacks and in other ways limit black rights. After the Civil War, most southern states adopted far more severe black codes to prevent former slaves, called freedmen at the time, from having the full rights of citizens and to reimpose, as much as possible, the labor and racial controls of slavery.
Black Codes in the North
In 1804 Ohio passed an act to "regulate black and mulatto persons." This law became the prototype for subsequent laws passed in Ohio, Indiana, Illinois, and the Michigan Territory. It required that blacks migrating to Ohio show proof of their freedom and exacted a $50 fine from any white hiring a black who did not have such proof. On its face, this law could be seen as a good-faith effort to prevent fugitive slaves from entering the state. In fact, it was primarily designed to discourage black migration. An 1807 law raised the fine to $100 and required migrating blacks to find two sureties to guarantee their "good behavior" and assure that they would not require public assistance. Subsequent amendments to these laws prevented blacks from serving on juries and testifying against whites and severely limited their access to public schools. Although discriminatory, these laws did not prevent blacks from owning real estate, entering professions—including law and medicine—or exercising freedom of speech, press, assembly, and worship. Moreover, once blacks were legally present in a state, the black codes of the North did not inhibit their geographic mobility.
These laws were generally ineffective in limiting the growth of the free black population. From 1803 to 1860, Ohio's black population actually grew at a slightly faster rate than did its white population. Between 1830 and 1860, Indiana, Illinois, and Ohio all saw over 300 percent growth in their black populations. Little evidence exists that migrating blacks were generally asked to prove their freedom or that anyone enforced the requirement that migrating blacks find sureties to sign bonds for them. In addition, no cases are on record of any whites being fined for hiring blacks who failed to provide proof of their freedom.
In 1849 Ohio repealed most of its black codes, including those provisions discouraging black migrants from coming to the state. The repeal was part of an elaborate legislative compromise that also sent the abolitionist Salmon P. Chase to the U.S. Senate. Indiana and Illinois retained their discriminatory laws until after the Civil War. Iowa, California, and Oregon also adopted some aspects of the northern black codes, but Iowa and California dropped virtually all these rules before or during the Civil War.
By the end of the Civil War, blacks in the North had substantial equality under the law, except that in most states they could not vote or serve on juries. These disabilities based on race disappeared after the ratification of the Fifteenth Amendment in 1870. After 1870, some northern states still prohibited marriages between blacks and whites, but otherwise most remnants of the black codes were no longer on the books.
Black Codes in the South
In the South, the situation was far different. The loss of the war and the emancipation of four million slaves immediately and dramatically affected southern society. Emancipation upset the system of racial control that had kept blacks subordinate to whites since the seventeenth century, and also destroyed the economic relationship that had allowed planters to count on a pliable and ever-present source of labor. With slavery gone, the legal status of the freedmen and their role in the postwar South were uncertain. Immediately after the war, southern legislatures began to adopt black codes to define the status of former slaves and to cope with the emerging problems resulting from Emancipation.
Northerners assumed that after Emancipation exslaves would have the same rights as other free people, but white southerners did not hold the same views. Before the war, the rights of free blacks were severely restricted and usually enumerated in slave codes, underscoring the antebellum southern view that free blacks were an anomalous and inherently dangerous class of people. Thus, when the war ended the ex-slaves of the former Confederate states lacked most legal rights. The black codes changed this but in a way that rigorously limited the rights of freedmen.
At the personal level, the black codes allowed African Americans to marry each other (but not whites) and declared that all slaves who had lived as married couples would be considered legally married. Mississippi's laws of 1865—the first adopted in the postwar South—illustrate how the black codes gave former slaves some rights while at the same time denying them many others that whites had. The end result was to give former slaves most of the responsibilities but few of the benefits of freedom.
An 1865 law with the misleading title "An Act to confer Civil Rights on Freedmen, and for other Purposes," declared that blacks could "sue and be sued, implead and be impleaded" in all state courts, but only allowed them to testify in cases involving other blacks and prohibited them from serving on juries. The law allowed freedmen to acquire and dispose of property "to the same extent that white persons may," but prohibited them from renting any land except in "towns or cities." In other words, free blacks could not rent farmland. In overwhelmingly rural Mississippi, this meant that freedmen would become a peasant class, forced to work for white landowners and unable to acquire land on their own. Another provision of this law required that all labor contracts made with freedmen for more than a month had to be in writing, and that any freedman who quit before the end of the term of a contract would "forfeit his wages for the year," including those earned up to the time he quit. In a provision similar to the antebellum slave codes, this law obligated "every civil officer" to "arrest and carry back to his or her legal employer any freedman, free negro or mulatto, who shall have quit the service of his or her employer before the expiration of his or her term of service." This in effect made the free blacks of Mississippi slaves to their employers, at least for the term of their employment. Anyone attempting to hire a black under contract to someone else was subject to fines, jail terms, and civil damage suits.
Another Mississippi statute allowed counties to apprentice African-American children if their parents were declared to be too poor to support them. To many, this appeared to be an attempt to re-enslave the children of the freedmen. Still another statute, also enacted in 1865, declared that any black who did not have a labor contract would be declared a vagrant and would be subject to fines or imprisonment. This law provided punishment for free blacks who were "found unlawfully assembling themselves together either in the day or night time," for whites who assembled with such blacks, and for whites and blacks who married or cohabited.
Other states adopted laws with similar intent but different provisions. Rather than prohibiting blacks from renting land, South Carolina prohibited them from working in nonagricultural jobs without paying special taxes that ranged from $10 to $100. South Carolina also enacted harsh criminal laws to suppress African Americans. Stealing a hog could lead to a $1,000 fine and ten years in jail. Other crimes had punishments of whipping, the stocks, or the treadmill, as well as fines and long imprisonment. Hired farm workers in South Carolina could not even sell farm produce without written authorization from their employers. Other provisions of the law created special taxes and fines for blacks, with imprisonment or forced labor for those who lacked the money to pay them. Like Mississippi, South Carolina provided for the apprenticing of black children. These and similar laws created something close to a reimposition of slavery in South Carolina. In 1865 Louisiana and Alabama adopted laws similar to those of South Carolina and Mississippi.
The black codes of 1865 shocked many northerners. In South Carolina, General Daniel E. Sickles suspended the law, as did Union troops in the Mississippi military. Even some white governors, including William L. Sharkey of Mississippi and Robert Patton of Alabama, opposed some of the more blatantly discriminatory laws. In Congress, Republicans responded by introducing legislation that led to the Civil Rights Act of 1866 and eventually to the Fourteenth Amendment.
In 1866 the rest of the former Confederacy adopted black codes. Florida's code was as harsh as those of Mississippi and South Carolina, providing whipping, the pillory, and forced labor for various offenses. Florida prohibited any blacks from moving into the state, prohibited African Americans from owning firearms, and although allowing the creation of schools for blacks prohibited the use of state money to pay for them.
Other states were more discreet in their legislation, trying to avoid giving ammunition to Republicans in Congress, who were growing increasingly impatient with the South's attempts to reimpose bondage and oppression on the freedmen. Virginia's vagrancy law carefully avoided any reference to race but still punished offenders with forced labor and was clearly directed at the freedmen. Not surprisingly, General Alfred H. Terry suspended its operation, although two other generals, in other parts of Virginia, allowed it to go into force. Tennessee's new criminal code provided the death penalty for breaking and entering with the intent to rob, for robbery itself, and for horse stealing. This law did not use any racial terms but was again clearly aimed at blacks. Similarly, Georgia and North Carolina tried to avoid the use of racial terms that might have jeopardized their chances of readmission to the Union. Nevertheless, none of the former Confederate states was ready to have racially blind statutes, much less racially blind justice. North Carolina's law, arguably the least offensive of the new black codes, nevertheless provided a death penalty for black rapists when the victim was white, but not for white rapists, no matter what the color of the victim.
Like the 1865 laws, those passed in 1866 regulated the movement of blacks, their ability to live where they wished, and their ability to sell their labor on an open market. All the 1866 laws also tried to create racial controls to keep African Americans in a subordinate role, even as they tried to avoid the appearance of racial discrimination. By 1867, southern legislatures had repealed most of the provisions that designated specific punishments by race. Even without racially specific language, however, courts continued to apply solely to African Americans provisions of the black codes regulating vagrancy, contracts, and children.
Although these laws remained on the books in one form or another throughout Reconstruction, their enforcement was sporadic. Congress, the Freedmen's Bureau, and the military opposed them. Nevertheless, the laws remained a symbol of the oppression that the postbellum South offered African Americans. After 1877 the South gradually reimposed those provisions of the black codes that segregated blacks and regulated labor contracts. Such laws led to peonage and a second-class status for southern blacks in the late nineteenth and early twentieth centuries.
Berwanger, Eugene D. The Frontier against Slavery: Western AntiNegro Prejudice and the Slavery Extension Controversy. Urbana: University of Illinois Press, 1967.
Erickson, Leonard. "Politics and Repeal of Ohio's Black Laws, 1837–1849." Ohio History 82 (1973): 154–175.
Finkelman, Paul. "Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North." Rutgers Law Journal 17 (1986): 415–482.
Finkelman, Paul, ed. Race, Law, and American History, 1700–1990; Vol. 3: Emancipation and Reconstruction. New York: Garland, 1992.
Lichtenstein, Alex. "Black Codes." Footsteps 6, no. 4 (2004): 14.
Nieman, Donald. To Set the Law in Motion: The Freedmen's Bureau and the Legal Rights of Blacks, 1865–1868. Millwood, N.Y.: KTO, 1979.
Wilson, Theodore B. The Black Codes of the South. University: University of Alabama Press, 1965.
paul finkelman (1996)
Black codes were laws passed immediately following the American Civil War (1861–65) by the former Confederate States of America . They were designed to prevent blacks from having the full rights of citizens and to restore, as much as possible, the labor and racial controls of slavery . The first black codes were passed in South Carolina and Mississippi in 1865, and they quickly appeared in other states throughout the South. Although they differed in form from each other, their aims were the same.
Before the Civil War, many states throughout the United States had laws that prevented blacks from enjoying the same rights as whites. By the end of the Civil War, much of that had changed in the North. This became increasingly true with America's adoption of the Fourteenth Amendment and Fifteenth Amendments of the Constitution in 1868 and 1870, which require equal protection under state laws and the right to vote, respectively.
The situation was quite different in the South. The emancipation of four million slaves dramatically affected southern white society. The system of slavery had empowered whites to keep blacks subordinate and had allowed the southern economy to thrive on the cheap labor of slavery. The system had been legalized by slave codes that defined the limited rights of blacks in the South.
With slavery abolished under the Thirteenth Amendment in 1865, the legal status of blacks became uncertain. Southern legislatures began to enact black codes based largely on the pre-existing slave codes. In many instances the black codes seemed to provide legal rights for newly freed slaves. They allowed blacks to marry, own property, negotiate contracts, and have limited participation in court proceedings against other blacks.
In reality, however, the black codes provided inferior rights and thereby ensured that southern blacks would remain subordinate to whites. The laws restricted where blacks could live and which trades they could practice. Many laws put limitations on labor contracts and property ownership, so blacks found themselves effectively slaves again to their employers or landlords. The punishments for breaking many of the laws were extremely harsh. Although many of the black codes attempted to mask racial intentions by avoiding the specific mention of race, they were obviously aimed at black southerners.
The black codes shocked many northerners and sparked concern about the effectiveness of reintegrating the southern states into the Union . The requirements for reintegration in the Reconstruction plan of President Andrew Johnson (1808–1875; served 1865–69) were easily met and demanded little change from the southern state governments. As a result, the enactment of black codes provoked conflict between the executive branch and legislative branch of the federal government for control of the process of Reconstruction.
The Republican Congress seized control of Reconstruction efforts and forced changes in policy. By requiring new constitutions and governments in the southern states, Congress managed to abolish some black codes. Congress passed legislation to protect the rights of freed slaves, including the Civil Rights Act of 1866 and proposals for the Fourteenth and Fifteenth Amendments. Such legislation attempted to guarantee full citizenship and rights for blacks.
After Reconstruction, however, many of the racially discriminatory policies that shaped the black codes began to reappear. So-called Jim Crow laws , named for a character in a popular minstrel show, reintroduced similar inequality that resulted in black segregation and subordination until passage of the Civil Rights Act of 1964 .
A body of laws, statutes, and rules enacted by southern states immediately after the Civil War to regain control over the freed slaves, maintain white supremacy, and ensure the continued supply of cheap labor.
The Union's victory over the South in the Civil War signaled the end for the institution of slavery in the United States. Ratified in 1865, the thirteenth amendment to the U.S. Constitution formalized this result in U.S. law, abolishing slavery throughout the country and every territory subject to its jurisdiction.
For the next several months, southern states sought a way to restore for the white majority what the Civil War and the Thirteenth Amendment had tried to deny them, supremacy, control, and economic power over the fate of African Americans. Under slavery, whites had disciplined the blacks largely outside the law, through extralegal whippings administered by slave owners and their overseers. After the slaves were emancipated, panicky whites feared that blacks would seek revenge against them for their harsh and inhumane treatment on the southern plantations. Former slave owners feared for themselves, their families, and their property.
While some white southerners thought that African-Americans were best controlled through vigilantism, Mississippi whites began passing laws to take away the former slaves' new found freedom. The first such law was enacted on November 22, 1865. It directed civil officers to hire orphaned African Americans and forbade the orphans to leave their place of employment for any reason. Orphans were typically compensated with a free place to live, free meals, and some type of nominal wage. Other white employers were prohibited from offering any enticement to blacks "employed" by someone else.
The Mississippi legislature next passed a vagrancy law, defining vagrants as workers who "neglected their calling or employment or misspent what they earned." Another Mississippi law required African Americans to carry with them written evidence of their present employment at all times, a practice that was hauntingly reminiscent of the old pass system under slavery. The final piece to the puzzle came when Mississippi established a system of special county courts to punish blacks charged with violating one of the new state employment laws. The law imposed draconian punishments, including "corporal chastisement" for blacks who refused to work or otherwise tried to frustrate the system. African Americans who committed real crimes, such as stealing, could be hung by their thumbs.
Widely considered to be the first set of Black Codes passed in the south after the Civil War, these Mississippi laws represented a concerted effort by white lawmakers to restore the master-slave relationship under a new name. Within a few months after Mississippi passed its first such law, Alabama, Georgia, Louisiana, Florida, Tennessee, Virginia, and North Carolina followed suit by enacting similar laws of their own.
Congress quickly responded to the Black Codes by passing the civil rights act of 1866, which made it illegal to discriminate against blacks by assigning them an inferior legal and economic status. Two years later the states ratified the fourteenth amendment, which guaranteed "equal protection of the laws" to the residents of every state.
But the southern states were not deterred. They soon passed a new set of laws that permitted local officials to informally discriminate against blacks, without specific statutory authority. The thrust-and-parry exchanges between Congress and the southern states continued throughout the period Reconstruction (1865-77) and through the first half of the twentieth century.
Pulliam, Ted. 2001. "The Dark Days of Black Codes." Legal Times 24.
Black codes were state laws passed in the South during Reconstruction (1865–1877), the period of rebuilding that followed the American Civil War (1861–1865). The laws were intended to restrict the civil rights of African Americans. Though they varied by state the codes were usually written to prevent land ownership by African Americans and limit their freedom of movement. Some prevented them from owning weapons. The enactment of the codes prompted the U.S. Congress to pass the Civil Rights Acts of 1866 and 1875 to protect African American citizens in the South. President Andrew Johnson (1865–1869) opposed the 1866 measure enacted during his administration. However, the radical Republican-led Congress was able to overturn presidential vetoes to determine Reconstruction policy. Under the watchful eye of Congress and federal military administrators who were sent to the South to reorganize the states for readmission to the Union, two African American men, Hiram Rhoades Revels (1822–1901) and Blanche Kelso Bruce (1841–1898), became U.S. senators. Fifteen other African Americans were elected to the U.S. House of Representatives.
But after the withdrawal of federal troops from the South (1877) racial discrimination intensified despite ratification of the Fourteenth Amendment (1868). The amendment protected the rights of all citizens regardless of race. Black codes were strengthened by Supreme Court decisions in the 1880s and 1890s. One of these was Plessy vs. Ferguson (1896), which upheld the constitutionality of a Louisiana law requiring separate-but-equal facilities for whites and blacks in railroad cars. Such policies of strict segregation were called "Jim Crow laws": Jim Crow was the stereotype of a black man described in a nineteenth century song-and-dance act. As the social, political, and economic climate in the South worsened for African Americans many of them migrated north to urban centers. Some of them went west to settle towns and establish farms on the open plains. African American farmers joined the Populist (People's party) movement during the late 1800s, which worked to improve conditions for growers and laborers. The system of segregation born out of the Black Codes prevailed until the mid-1900s. Most segregation laws were overturned by decisions of the Supreme Court during the Civil Rights Movement of the 1950s and 1960s.
BLACK CODES were the acts of legislation enacted in the Confederate states in 1865 and 1866 to limit the freedom of recently freed blacks. Some apply the term to Southern antebellum legislation that restricted the action and movements of slaves, although such laws are more frequently referred to as slave codes. Persons using the term "black codes" to include all such laws see the codes as originating in the seventeenth century, continuing until the Civil War, and being reenacted in slightly modified form immediately after the war.
The laws passed in 1865–1866 by the several states did extend some civil and legal rights to freed persons—permitting them to acquire and own property, marry, make contracts, sue and be sued, and testify in court cases involving persons of their own color. But the main purpose of the legislation was to stabilize the black workforce by compelling African Americans to work and by limiting their economic options. The codes typically had provisions for declaring blacks to be vagrants if they were un-employed and without permanent residence. As vagrants, they were subject to being arrested, fined, and bound out for a term of labor if unable to pay the fine. The codes also imposed penalties for refusing to complete a term of labor as well as for breaking an agreement to work when it was entered into voluntarily. Those who encouraged African Americans to refuse to abide by these restrictive laws were themselves subject to penalties. In like manner, black orphans could be apprenticed to work for a number of years. In many of these cases the whites to whom blacks were assigned turned out to be their former owners. The codes barred African Americans from testifying in court cases involving whites, often prohibited them from bearing firearms, and forbade intermarriage between the races. Of the states with the most restrictive legislation, Mississippi limited the types of property blacks could own, and South Carolina excluded blacks from certain businesses and from skilled trades.
Being strikingly similar to the antebellum slave codes, the black codes were, at the very least, not intended to protect the rights to which African Americans were entitled as free persons. The laws aimed to replace the social controls of slavery, which had been legally swept away by the Emancipation Proclamation and the Thirteenth Amendment, and to reinstate the substance of the slave system without the legal form.
Enactment of black codes in the Southern states was a factor in the conflict within the federal government between the executive and legislative branches for control of the process of Reconstruction. More than any other single factor, it demonstrated what African Americans could expect from state governments controlled by those who had actively supported the Confederate cause. Northern reaction to the codes helped to produce Radical Reconstruction and the Fourteenth and Fifteenth Amendments, which temporarily removed such legislation from the books. Following Reconstruction, many of the provisions of the black codes were reenacted in the Jim Crow laws that continued in effect until the Civil Rights Act of 1964.
Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877. New York: Harper and Row, 1988.
Litwack, Leon F. Been In the Storm So Long: The Aftermath of Slavery. New York: Knopf, 1979.
Wilson, Theodore B. The Black Codes of the South. Birmingham: University of Alabama Press, 1965.
Henry N.Drewry/c. p.
Shortly after the Civil War's end, Southern legislatures, which were dominated by ex-Confederates during the presidential phase of Reconstruction (1864–1867), passed laws that for former slaves replaced the authority of slave owners with that of the state. Republicans labeled these laws Black Codes, although Mississippi's 1865 statute was titled An Act to Confer Civil Rights on Freedmen, and for other purposes. All acts bestowed at least some minimal civil rights, including the rights to sue and be sued, to testify in court (but not against whites), and to marry (at least each other). In no state were freedmen permitted to vote, hold office, or serve on juries. Northerners objected that the codes also placed severe restrictions on African-American hopes of economic and political advancement.
At the end of the Civil War, a large proportion of the Southern population had been dislocated. Ex-Confederate refugees and soldiers usually had a home site to return to, but the freed people were not always welcomed or anxious to stay on the plantations where they had once worked. In addition, thousands took to the roads in search of lost family members. Finally, the freed people clung to the vain hope that the forty acres and a mule promised by General W. T. Sherman during his march to sea awaited them in the near future. Southern white legislators, faced with what they saw as social unrest and economic ruin, embedded in their codes significant restrictions on African-American economic freedom.
Laws requiring work were nothing new (vagrancy had been punished in England for centuries), and at least three Northern states—Illinois, Indiana, and Ohio—had antebellum statutes directed at African Americans. However, not only did the Black Codes seek to reestablish white control over black labor, but many state and city ordinances effectively froze blacks out of skilled work, professions, and even land ownership. Florida forbade anyone of African origin from owning knives or guns without a license.
Freedman's Bureau officials, Southern Unionists, and radical Republicans immediately objected. The result was the passage of the Fourteenth Amendment to the U.S. Constitution. After its central feature, that freed people were both American and state citizens, came the three key guarantees: the privileges and immunities of citizenship, equal protection of the law, and due process of law. The Black Codes became a dead letter in law.
However, large portions of these codes became part of the structure of Southern society after Reconstruction ended. Restrictions on the freedom to buy land or travel became sunset laws, large posted signs warning those of African-Amercan ancestry that they were expected to be out of town before dark or face the threat of bodily harm. Numerous federal peonage prosecutions in the twentieth century revealed that the labor laws too had been revived. Finally, the segregation found its way back into law in the 1890s and endured until the 1970s. The Civil Rights movement of the 1950s and 1960s was aimed at overturning segregation and the denial of equal rights, which were the legacy of slavery, Black Codes, and the failure after 1877 to apply the Fourteenth and Fifteenth amendments to protect African-American civil liberties.
Cox, Lawanda, and Cox, John H. Politics, Principle, and Prejudice, 1865–1866: Dilemma of Reconstruction America. New York: Free Press of Glencoe, 1963.
Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877. New York: Harper & Row, 1988.
Perman, Michael. Reunion without Compromise: The South and Reconstruction, 1865–1868. Cambridge, UK: Cambridge University Press, 1973.
Michael B. Dougan
In 1865–1866, the former slave states enacted statutes, collectively known as the "Black Codes," regulating the legal and constitutional status of black people. The Black Codes attempted to accomplish two objectives: (1) to enumerate the legal rights essential to the status of freedom of blacks; and (2) to provide a special criminal code for blacks. The latter objective reflected the two purposes of the antebellum law of slavery: race control and labor discipline.
In the view of white Southerners, emancipation did not of its own force create a civil status or capacity for freedmen. The southern state legislatures accordingly specified the incidents of this free status: the right to buy, sell, own, and bequeath property; the right to make contracts; the right to contract valid marriages, including so-called common-law marriages, and to enjoy a legally recognized parent-child relationship; the right to locomotion and personal liberty; the right to sue and be sued, and to testify in court, but only in cases involving black parties.
But the Codes also reenacted elements of the law of slavery. They provided detailed lists of civil disabilities by recreating the race-control features of the slave codes. They defined racial status; forbade blacks from pursuing certain occupations or professions; prohibited blacks from owning firearms or other weapons; controlled the movement of blacks by systems of passes; required proof of residence; prohibited the congregation of groups of blacks; restricted blacks from residing in certain areas; and specified an etiquette of deference to whites, such as by prohibiting blacks from directing insulting words at whites. The Codes forbade racial intermarriage and provided the death penalty for blacks raping white women, while omitting special provisions for whites raping black women. (See miscegenation.) They excluded blacks from jury duty, public office, and voting. Some Black Codes required racial segregation in public transportation or created Jim Crow schools. Most Codes authorized whipping and the pillory as punishment for freedmen's offenses.
The Codes salvaged the labor-discipline elements of slave law in master-and-servant statutes, vagrancy and pauper provisions, apprenticeship regulations, and elaborate labor contract statutes, especially those pertaining to farm labor. Other provisions permitted magistrates to hire out offenders unable to pay fines. These statutes provided a basis for subsequent efforts, extending well into the twentieth century, to provide a legal and paralegal structure forcing blacks to work, restricting their occupational mobility, and providing harsh systems of forced black labor, sometimes verging on peonage.
The Black Codes profoundly offended the northern ideal of equality before the law. Northerners lost whatever sympathies they might have entertained for the plight of southern whites trying to make the revolutionary transition from a slave society, based on a legal regime of status, to a free, capitalist society based on will and contract. Northerners determined to force the former slave states to create new structures of racial equality. Consequently, the Black Codes were repealed or left unenforced during the congressional phase of Reconstruction. Later Redeemer and Conservative state legislatures reenacted the Jim Crow provisions and labor contract statutes to provide the statutory component of the twilight zone of semifreedom that characterized the legal status of southern blacks through world war i.
William M. Wiecek
Wilson, Theodore B. 1965 The Black Codes of the South. University: University of Alabama Press.