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In the United States, the most notorious Black Codes were laws passed by Southern states in 1865 and 1866, after the Civil War. These laws had the intent and the effect of restricting African Americans' freedom, and of compelling them to work in a labor economy based on low wages or debt.
Since the early 1800s, many laws in both North and South discriminated systematically against free Blacks. In the South, "slave codes" placed significant restrictions on Black Americans who were not themselves slaves. A major purpose of these laws was maintenance of the system of white supremacy that made slavery possible.
With legal prohibitions of slavery ordered by the Emancipation Proclamation, acts of state legislature, and eventually the Thirteenth Amendment, Southern states adopted new laws to regulate Black life. Although these laws had different official titles, they were (and are) commonly known as Black Codes. (The term originated from "negro leaders and the Republican organs" according to Confederate historian John S. Reynolds.) The defining feature of the Black Codes was vagrancy law which allowed local authorities to arrest the freedpeople and commit them to involuntary labor.
Vagrancy laws date back to the end of feudalism in Europe. Introduced by aristocratic and landowning classes, they had the dual purpose of restricting access of "undesirable" classes to public spaces and of ensuring a labor pool as serfs became emancipated from their land.
“Slave codes” in the antebellum South contained more regulations of free Blacks than of slaves themselves. Chattel slaves basically lived under the complete control of their owners; non-slaves presented more of a challenge to the boundaries of White-dominated society. Black Codes in the antebellum South heavily regulated what people could do. Blacks could not assemble, bear arms, become literate, speak freely, or testify against White people in Court. These regulations intensified during the 1800s, intensifying after Nat Turner's insurrection of 1831, and culminating in the Supreme Court's Dred Scott decision of 1857. Restrictions on manumission and freedom of movement placed tighter and tigher restrictions on what Black people could do.
As the abolitionist movement gained force and escape programs for slaves such as the Underground Railroad expanded, concern about blacks heightened among some whites in the North. North of the Mason–Dixon line, anti-Black laws were generally less severe. Some public spaces were segregated, and Blacks generally did not have the right to vote.
All the slave states passed laws banning the marriage of whites and black people, so-called anti-miscegenation laws, as did several new free states, including Indiana, Illinois and Michigan. Indiana and Illinois shared borders with slave states and the southern populations of these states had cultures that shared more values with the South across the Ohio River than the northern populations. In several states the Black Codes were either incorporated into or required by their state constitutions, many of which were rewritten in the 1840s.
Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution." The 1848 Constitution of Illinois led to one of the harshest Black Code systems in the nation until the Civil War. The Illinois Black Code of 1853 prohibited any Black persons from outside of the state from staying in the state for more than ten days, subjecting Black persons who remain beyond the ten days to arrest, detention, a $50 fine, or deportation.
Maryland passed vagrancy and apprentice laws, and required Blacks to obtain licenses from Whites before doing business. It prohibited Black immigration until 1865. Most of the Maryland Black Code was repealed in the Constitution of 1867, although Black women were not allowed to testify against White men with whom they had produced children.
The Union Army relied on the labor of newly freed people, and did not always treat them fairly. Thomas W. Knox wrote: "The difference between working for nothing as a slave, and working for the same wages under the Yankees, was not always perceptible." At the same time, military officials resisted local attempts to apply pre-war laws to the freed people. After the Emancipation Proclamation, the Army was able to conscript Black "vagrants" and sometimes others.
The Union wage system also went into large-scale effect after the Emancipation Proclamation, upgrading free Blacks from "contraband" status. It began in February 1863 under the jurisdiction of General Nathaniel P. Banks in Louisiana. General Lorenzo Thomas implemented a similar system in Mississippi. The Banks-Thomas system offered Blacks $10 a month, with an agreement to provide rations, clothing, and medicine. The worker would have to agree to an unbreakable one-year contract. In 1864, Thomas expanded the system to Tennessee, and allowed white landowners near the Nashville contraband camp to rent the labor of refugees.
Against opposition from within the Republican Party, Lincoln accepted this system as a step on the path to gradual emancipation. Abolitionists continued to criticize the system. Wendell Phillips said that Lincoln's proclamation had "free[d] the slave, but ignore[d] the Negro," calling the Banks-Thomas contracts tantamount to serfdom. The Worcester Spy described the government's answer to slavery as "something worse than failure."
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As the war ended, the Army implemented Black Codes to regulate the behavior of Black people in general society. Although the Freedmen's Bureau had a mandate to protect Blacks from a hostile Southern environment, it also sought to keep Blacks in their place as laborers under a system of white supremacy. The Freedmen's Bureau cooperated with Southern authorities in rounding up Black "vagrants" and placing them in contract work. In some places, it supported owners to maintain control of young slaves as apprentices.
Soon after the end of slavery, white planters encountered a labor shortage and sought a way to manage it. Although Blacks did not all abruptly stop working, they did try to work less. In particular, many sought to reduce their Saturday work hours, and women wanted to spend more time on child care. In the view of one contemporary economist, freedpeople exhibited this “noncapitalist behavior” because the condition of being owned had "shielded the slaves from the market economy" and they were therefore unable to perform "careful calculation of economic opportunities." An alternative explanation treats the labor slowdown as a form of gaining leverage through collective action. And at the same time, freedpeople certainly did not want to work the long hours that had been forced upon them for their whole lives. Whatever its causes, the sudden reduction of available labor posed a challenge the Southern economy, which had relied upon intense physical labor to profitably harvest cash crops, particularly King Cotton.
White Americans, particularly in the South, had established their beliefs about Black people during multiple generations of living in a racist society. Whites believed that both that Black people were destined for servitude and that they would not work unless physically compelled. Culturally, free Blacks no longer felt compelled to show conspicuous deference to White people. The racial divisions which slavery had created immediately became more obvious. Blacks also bore the brunt of Southern anger over defeat in the War.
Legislation on the status of freedpeople was often mandated by constitutional conventions held in 1865. Mississippi, South Carolina, and Georgia all included language in their new state constitutions which instructed the legislature to "guard them and the State against any evils that may arise from their sudden emancipation." The Florida convention of October 1865 included a vagrancy ordinance that was in effect until process Black Codes could be passed through the regular legislative process.
Black Codes restricted black people's right to own property, conduct business, buy and lease land, and move freely through public spaces. A central element of the Black Codes were vagrancy laws, in which states classified not working as criminal behavior. Failure to pay a certain tax, or to comply with other laws, could also be construed as vagrancy. Nine states updated their vagrancy laws in 1865–1866. Of these, eight allowed convicting leasing (a system in which state prison hired out convicts for labor) and five allowed prisoner labor for public works projects.
Strict punishments against theft also served to ensnare many people in the legal system. Previously, Blacks had been part of the domestic economy on a plantation, and were more or less able to use supplies that were available. After emancipation, the same act performed by someone working the same land might be labeled as theft, leading to arrest and involuntary labor.
Some states explicitly curtailed Black people's right to bear arms, justifying these laws with claims of imminent insurrection. In Mississippi and Alabama, these laws were enforced through the creation of special militias.
Samuel McCall commented in 1899 that the Black Codes had "established a condition but little better than that of slavery, and in one important respect far worse": by severing the property relationship, they had diminished the incentive for property owners to ensure the relative health and survival of their workers.
Regarding the question of how intentionally Southern legislatures intended to maintain White supremacy, Beverly Forehand writes: "This decision was not a conscious one on the part of white legislators. It was simply an accepted conclusion."
The new laws established some positive rights for Blacks. States legalized Black marriages and in some cases increased rights to own property and conduct commerce.
Mississippi was the first state to pass Black Codes. Its laws served as a model for those passed by other states, beginning with South Carolina, Alabama, and Louisiana in 1865, and continuing with Florida, Virginia, Georgia, North Carolina, Texas, Tennessee, and Arkansas at the beginning of 1866. Intense Northern reaction against the Mississippi and South Carolina laws led some of the following states to excise overt racial discrimination; nevertheless, their laws on vagracy, apprenticeship, and other topics were crafted to effect a similarly racist regime. Even states that carefully eliminated most of the overt discrimination in their Black Codes retained laws authorizing harsher sentences for Black people.
Mississippi was the first state to legislate a new Black Code after the war, beginning with "An Act to confer Civil Rights on Freedmen." This law allowed Blacks to rent land only within cities—effectively preventing them from earning money through independent farming. It required Blacks to present, each January, written proof of employment. The law defined violation as vagrancy, punishable by arrest—for which the arresting officer would be paid $5, taken from the arrestee's wages. Provisions akin to fugitive slave laws mandated the return of runaway workers, who would lose their wages for the year. An amended version of the vagrancy law also included punishments for sympathetic whites:
That all freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, without lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time, and all white persons so assembling themselves with freedmen, free negroes or mulattoes, or usually associating with freedmen, free negroes or mulattoes, on terms of equality, or living in adultery or fornication with a freed woman, free negro or mulatto, shall be deemed vagrants, and on conviction thereof shall be fined in a sum not exceeding, in the case of a freedman, free negro, or mulatto, fifty dollars, and a white man two hundred dollars, and imprisoned, at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months.
Whites could avoid the code's penalty by swearing a pauper's oath. In the case of blacks, however: "the duty of the sheriff of the proper county to hire out said freedman, free negro or mulatto, to any person who will, for the shortest period of service, pay said fine or forfeiture and all costs." The laws also levied a special tax on blacks (between ages 18 and 60); those who did not pay could be arrested for vagrancy.
Another law allowed the state to take custody of children whose parents could or would not support them; these children would then be "apprenticed" to their former owners. Masters could discipline these apprentices with corporal punishment. They could re-capture apprentices who escaped and threaten them with prison if they resisted.
Mississippi rejected the Thirteenth Amendment on December 5.
The next state to pass Black Codes was South Carolina, which had on November 13 ratified the Thirteenth Amendment—with a qualification that Congress did not have the authority to regulate the legal status of freedmen. Newly elected governor James Lawrence Orr said that blacks must be "restrained from theft, idleness, vagrancy and crime, and taught the absolute necessity of strictly complying with their contracts for labor."
South Carolina's new law on "Domestic Relations of Persons of Color" established wide-ranging rules on vagrancy resembling Mississippi's. Conviction for vagrancy allowed the state to "hire out" blacks for no pay. The law also called for a special tax on blacks (all males and unmarried females), with non-paying blacks again guilty of vagrancy. The law enabled forcible apprenticeship of children of impoverished parents, or of parents who did not convey "habits of industry and honesty." The law did not include the same punishments for Whites in dealing with fugitives.
The South Carolina law created separate courts for Black people, and authorized capital punishment for crimes including theft of cotton. It created a system of licensing and written authorizations that made it difficult for Blacks to engage in normal commerce.
The South Carolina Code clearly borrowed terms and concepts from the old slave codes, re-instituting a rating system of "full" or "fractional" farmhands and often referring to bosses as "masters."
A "Colored People's Convention" assembled at Zion Church in Charleston to condemn the Codes. In a memorial (petition) to Congress, the Convention expressed gratitude for emancipation and the Freedmen's Bureau, but requested (in addition to suffrage) ”that the strong arm of law and order be placed alike over the entire people of this State; that life and property be secured, and the laborer as free to sell his labor as the merchant his goods.”
Some Whites, meanwhile, thought the new laws did not do enough. One planter suggested that the new laws would require paramilitary enforcement: “As for making the negroes work under the present state of affairs it seems to me a waste of time and energy […] We must have mounted Infantry that the freedmen know distinctly that they succeed the Yankees to enforce whatever regulations we can make.” Edmund Rhett (son of Robert Rhett) wrote that although South Carolina might be unable to undo abolition, “it should to the utmost extent practicable be limited, controlled, and surrounded with such safe guards, as will make the change as slight as possible both to the white man and to the negro, the planter and the workman, the capitalist and the laborer.”
However, even as the legislators passed these laws, they despaired of the forthcoming response from Washington. James Hemphill said: "It will be hard to persuade the freedom shriekers that the American citizens of African descent are obtaining their rights." Orr moved to block further laws containing explicit racial discrimination. In 1866, the South Carolina code came under increasing scrutiny in the Northern press and was compared unfavorably to freedmen's laws passed in neighboring Georgia, North Carolina, and Virginia.
The Louisiana legislature, seeking to ensure that freedmen were “available to the agricultural interests of the state”, passed similar yearly contract laws and expanded its vagrancy laws. Its vagrancy laws did not specify Black culprits, though they did provide a “good behavior” loophole subject to plausibly racist interpretation. Louisiana passed harsher fugitive worker laws and required blacks to present dismissal paperwork to new employers.
State legislation was amplified by local authorities, who ran less risk of backlash from the federal government. Opelousas, Louisiana passed a notorious code which required freedpeople to have written authorization to even enter the town. The code prevented freedpeople from living in the town or walking at night except under supervision of a White resident.
Thomas Conway, the Freedmen's Bureau commissioner for Louisiana, testified in 1866:
Some of the leading officers of the state down there—men who do much to form and control the opinions of the masses—instead of doing as they promised, and quietly submitting to the authority of the government, engaged in issuing slave codes and in promulgating them to their subordinates, ordering them to carry them into execution, and this to the knowledge of state officials of a higher character, the governor and others. […] These codes were simply the old black code of the state, with the word 'slave' expunged, and 'Negro' substituted. The most odious features of slavery were preserved in them.
Conway describes surveying the Louisiana jails and finding large numbers of Black men who had been secretly incarcerated. These included members of the Seventy-Fourth Colored Infantry who had been arrested the day after they were discharged.
The state passed an even harsher version of its code in 1866, outlawing "impudence," "swearing," and other signs of "disobedience."
Of the Black Codes passed in 1866 (after the Northern reaction had become apparent), only Florida's rivaled those of Mississippi and South Carolina in severity. Florida's slaveowners seemed to hold out hope that the institution of slavery would simply be restored. Advised by the Florida governor and attorney general as well as by the Freedmen's Bureau that it could not constitutionally revoke Black people's right to bear arms, the Florida legislature refused to repeal this part of the codes.
These laws applied to any "person of color," which was defined as someone with at least one Negro great-grandparent. White women could not live with men of color. Colored workers could be punished for disrespecting White employers.
In Maryland, a fierce battle began immediately after emancipation (by the Maryland Constitution of 1864) over apprenticeship of young black people. Former slave owners rushed to apprentice the children of freedpeople; the Freedmen's Bureau and some others tried to stop them. The legislature stripped Baltimore Judge Hugh Lennox Bond of his position because he cooperated with the Bureau in this matter. Salmon Chase eventually overruled the apprentice laws on the grounds of the Civil Rights Act of 1866.
North Carolina's Black Code specified racial differences in punishment only for Blacks convicted of rape.
The Texas Constitutional Convention met in February 1866, declined to ratify the (already effective) Thirteenth Amendment, provided that Blacks would be "protected in their rights of person and property by appropriate legislation" and guaranteed some degree of rights to testify in court. Texas modeled its laws on South Carolina's.
The legislature defined Negroes as people with at least one African great-grandparent. Negroes could chose their employer, before a deadline. After they had made a contract, they were bound to it. If they quit "without cause of permission" they would lose all of their wages. Workers could be fined $1 for acts of disobedience or negligence, and 25 cents per hour for missed work. The legislature also created a system of apprenticeship (with corporal punishment) and vagrancy laws. Convict labor could be hired out or used in public works.
Negroes were not allowed to vote, hold office, sit on juries, serve in local militia, carry guns on plantations, homestead, or attend public schools. Interracial marriage was banned. Rape sentencing laws stipulated either capital punishment, or life in prison, or a minimum sentence of five years. Even to commentators who favored the codes, this "wide latitude in punishment" seemed to imply a clear "anti-Negro bias."
Tennessee had been occupied by the Union for a long period during the war. As military governor of Tennessee, Andrew Johnson declared a suspension of the slave code in September 1864. However, these laws were still enforced in lower courts. In 1865, Tennessee freedpeople had no legal status whatsoever, and local jurisdictions often filled the void with extremely harsh Black Codes. During that year, Blacks went from one-fiftieth to one-third of the State's prison population.
Tennessee had a particularly urgent desire to re-enter the Union's good graces and end the occupation. When the Tennessee Legislature began to debate a Black Code, it received such negative attention in the Northern press that no comprehensive Code was ever established. Instead, the State legalized Black suffrage and passed a civil rights law guaranteeing Blacks equal rights in commerce and access to the Courts.
However, Tennessee society, including its judicial system, retained the same racist attitudes as did other states. Although its legal code did not discriminate against Blacks so explicitly, its law enforcement and criminal justice systems relied more heavily on racist enforcement discretion to create a de facto Black Code. The State already had vagrancy and apprenticeship laws which could easily be enforced in the same way as Black Codes in other states. Vagrancy laws came into much more frequent use after the war. And just as in Mississippi, Black children were often bound in apprenticeship to their former owners.
The legislature passed two laws on May 17, 1865; one to "Punish all Armed Prowlers, Guerilla, Brigands, and Highway Robbers"; the other to authorize capital punishment for thefts, burglary, and arson. These laws were targeted at Blacks and enforced disproportionately against Blacks, but did not discuss race explicitly.
Tennessee law permitted Blacks to testify against Whites in 1865, but this change did not immediately take practical effect in the lower courts. Blacks could not sit on juries. Still on the books were laws specifying capital punishment for a Black man who raped a White woman.
Kentucky had established a system of leasing prison labor in 1825. This system drew a steady supply of laborers from the decisions of "negro courts," informal tribunals which included slaveowners. Free Blacks were frequently arrested and forced into labor.
Kentucky did not secede from the Union and therefore gained wide leeway from the federal government during Reconstruction. With Delaware, Kentucky did not ratify the Thirteenth Amendment and maintained legally slavery until it was nationally prohibited when the Amendment went into effect in December 1865. After the Thirteenth Amendment took effect, the state was obligated to rewrite its laws.
The result was a set of Black Codes passed in early 1866. These granted a set of rights: to own property, make contracts, and some other innovations. They also included new vagrancy and apprentice laws, which did not mention Blacks explicitly but were clearly directed toward them. The vagrancy law covered loitering, "rambling without a job" and "keeping a disorderly house." City jails filled up; wages dropped below pre-war rates.
The Freedmen's Bureau in Kentucky was especially weak and could not mount a significant response. The Bureau attempted to cancel a racially discriminatory apprenticeship law (which stipulated that only White children learn to read) but found itself thwarted by local authorities.
Some legislation also created informal, de facto discrimination against Blacks. A new law against hunting on Sundays, for example, prevented Black workers from hunting on their only day off.
Kentucky law prevented Blacks from testifying against Whites, a restriction which the federal government sought to remedy by providing access to federal courts through the Civil Rights Act of 1866. Kentucky challenged the constitutionality of these courts and prevailed in Blyew v. United States (1872). All contracts required the presence of a White witness. Passage of the Fourteenth Amendment did not have a great effect on Kentucky's Black Codes.
The Black Codes outraged public opinion in the North because it seemed the South was creating a form of quasi-slavery to negate the results of the war. When the Radical 39th Congress re-convened in December 1865, it was generally furious about the developments that had transpired during Johnson's Presidential Reconstruction. The Black Codes, along with the appointment of prominent Confederates to Congress, signified that the South had been emboldened by Johnson and intended to maintain its old political order. Railing against the Black Codes as returns to slavery in violation of the Thirteenth Amendment, Congress passed the Civil Rights Act of 1866, the Fourteenth Amendment, and the Second Freedmen's Bureau Bill.
After winning large majorities in the 1866 elections, the Republican Congress passed the Reconstruction Acts placing the South under military rule. This arrangement lasted until the military withdrawal arranged by the Compromise of 1877. In some historical periodizations, 1877 marks the beginning of the Jim Crow era.[a]
The 1865–1866 Black Codes were an overt manifestation of the system of white supremacy that continued to dominate the American South. Historians have described this system as the emergent result of a wide variety of laws and practices, conducted on all levels of jurisdiction. Because legal enforcement depended on so many different local codes, which underwent less scrutiny than statewide legislation, historians still lack a complete understanding of their full scope. It is clear, however, that even under military rule, local jurisdictions were able to continue a racist pattern of law enforcement, as long as it took place under a legal regime that was facially race-neutral.
In 1893–1909 every Southern state except Tennessee passed new vagrancy laws. These laws were more severe than those passed in 1865, and used vague terms that granted wide powers to police officers enforcing the law. In wartime, Blacks might be disproportionately subjected to "work or fight" laws, which increased vagrancy penalties for those not in the military. The Supreme Court upheld racially discriminatory state laws and invalidated federal efforts to counteract them; in Plessy v. Ferguson (1896) it upheld the constitutionality of racial segregation and introduced the "separate but equal" doctrine.
A general syststem of legitimized anti-Black violence, as exemplified by the Ku Klux Klan, played a major part in enforcing the practical law of white supremacy. The constant threat of violence against Black people (and White people who sympathized with them) maintained a system of extralegal terror. Although this system is now well known for prohibiting Black suffrage after the Fifteenth Amendment, it also served to enforce coercive labor relations. Violence often occurred in response to perceived affronts; sometimes it was plainly genocidal. Fear of random violence provided new support for a paternalistic relationship between plantation owners and their Black workers.
This regime of White-dominated labor was not identified by the North as involuntary servitude until after 1900. In 1907, Attorney General Charles Joseph Bonaparte issued a report, Peonage Matters, which found that, beyond debt peonage, there was a widespread system of laws "considered to have been passed to force negro laborers to work."
After creating the Civil Rights Section in 1939, the federal Department of Justice launched a wave of successful Thirteenth Amendment prosecutions against involuntary servitude in the South.
Many of the Southern vagrancy laws remained on the books until the Supreme Court's Papachristou v. Jacksonville decision in 1972. Although by 1972 the laws were defended as preventing crime, the Court held that Jacksonville's vagrancy law "furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'"
Even after Papachristou, police activity in many parts of the U.S. discriminates against racial minority groups. Gary Stewart has identified contemporary gang injunctions—which target young Black or Latino men who gather in public—as a conspicuous legacy of Southern Black Codes. Stewart argues that these laws maintain a system of white supremacy and reflect a system of racist prejudice, even though racism is rarely acknowledged explicitly in their creation and enforcement. Contemporary Black commentators have argued that the current racially biased regime of mass incarceration, with a concommitant rise in prison labor, is comparable (perhaps unfavorably) with the historical Black Codes.
The desire to recuperate the labor of officially emancipated people is common among societies (most notably in Latin America) that were built on slave labor. Vagrancy laws and peonage systems are widespread features of post-slavery societies. One theory suggests that particularly restrictive laws emerge in larger countries, ( compare Jamaica with the U.S.A) where the ruling group does not occupy land at a high enough density to prevent the freed people from gaining their own. However, it seems, the U.S. was uniquely successful in maintaining involuntary servitude after legal emancipation.
Historians have also compared the end of the slavery in the U.S. to the formal decolonization of Asian and African nations (many of which were subjected to slavery by their European rulers). Like emancipation, decolonization was a landmark political change—but its significance was tempered by the continuity of economic exploitation. The end of legal slavery in the U.S. did not seem to have major effects on the global economy or international relations. Given the pattern of economic continuity, writes economist Pieter Emmer, "the words emancipation and abolition must be regarded with the utmost suspicion."