The Southern “Black Codes” of 1865-66 The end of the Civil War marked the end of slavery for 4 million black Southerners. But the war also left them landless and with little money to support themselves

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The Southern “Black Codes” of 1865-66

The end of the Civil War marked the end of slavery for 4 million black Southerners. But the war also left them landless and with little money to support themselves. White Southerners, seeking to control the freedmen (former slaves), devised special state law codes. Many Northerners saw these codes as blatant attempts to restore slavery.

White Southerners resented being ruled by Union military governors and Freedmen’s Bureau officials. They sought to restore self-rule. During the summer and fall of 1865, most of the old Confederate states held constitutional conventions. President Andrew Johnson’s reconstruction plan permitted only white persons to vote for convention delegates or to participate in the framing of the new state governments. Not surprisingly, none of the state conventions considered extending the right to vote to the freedmen. South Carolina’s provisional governor declared at his state constitutional convention that “this is a white man’s government.” By the end of the year, most of the South had held elections under the new state constitutions. Often, ex-Confederate leaders won elections for state government offices and for U.S. Congress.

The newly formed state legislatures began to pass laws limiting the freedom of the former slaves. These laws mirrored those of colonial times, which placed severe restrictions on both slaves and emancipated blacks. Neither of these groups could vote, serve on juries, travel freely, or work in occupations of their choice. Even their marriages were outside the law. The white legislators saw little reason not to continue the tradition of unequal treatment of black persons. An editorial in the Macon, Georgia, Daily Telegraph reflected the widely held opinion of the white South at this time: “There is such a radical difference in the mental and moral [nature] of the white and black race, that it would be impossible to secure order in a mixed community by the same [law].”

White Southerners also feared that if freedmen did not work for white landowners, the agricultural economy of the South would collapse. During the last months of 1865, a rumor spread among freedmen: The federal government was going to grant “40 acres and a mule” to every ex-slave family on Christmas Day. Although the federal government had confiscated some Confederate lands and given them to freed slaves, it never planned to do this on a massive scale. Nonetheless, expecting their own plots of land, blacks in large numbers refused to sign work contracts with white landowners for the new year. At the same time, Southern whites passed around their own rumor that blacks would rise in rebellion when the free land failed to appear on Christmas Day.

All these economic worries, prejudices, and fears helped produce the first Black Codes of 1865. These codes consisted of special laws that applied only to black persons. The first Black Code, enacted by Mississippi, proved harsh and vindictive.

The Mississippi Black Code.

An Act to Amend the Vagrant Laws of the State

Section 2. 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, with no lawful employment or business, or found unlawful assembling themselves together, either in the day or night time, and all white persons 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, freed 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 imprisonment at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months.

Section 7. If any freedman, free negro, or mulatto shall fail or refuse to pay any tax levied according to the provisions of the sixth section of this act, it shall be prima facie evidence of vagrancy, and it shall be the duty of the sheriff to arrest such freedman, free negro, or mulatto, or such person refusing or neglecting to pay such tax, and proceed at once to hire for the shortest time such delinquent taxpayer to any one who will pay the said tax, with accruing costs, giving preference to the employer, if there be one.

An Act to Confer Civil Rights on Freedmen, and for other Purposes

Section 1. All freedmen, free negroes and mulattoes may sue and be sued, implead and be impleaded, in all the courts of law and equity of this State, and may acquire personal property, and chooses in action, by descent or purchase, and may dispose of the same in the same manner and to the same extent that white persons may: Provided, That the provisions of this section shall not be so construed as to allow any freedman, free negro or mulatto to rent or lease any lands or tenements except in incorporated cities or towns…

Section 2. All freedmen, free negroes and mulattoes may intermarry with each other, in the same manner and under the same regulations that are provided by law for white persons: Provided, that the clerk of probate shall keep separate records of the same.

Section 3. All freedmen, free negroes or mulattoes who do now and have herebefore lived and cohabited together as husband and wife shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate for all purposes; and it shall not be lawful for any freedman, free negro or mulatto to intermarry with any white person; nor for any person to intermarry with any freedman, free negro or mulatto; and any person who shall so intermarry shall be deemed guilty of felony, and on conviction thereof shall be confined in the State penitentiary for life; and those shall be deemed freedmen, free negroes and mulattoes who are of pure negro blood, and those descended from a negro to the third generation, inclusive, though one ancestor in each generation may have been a white person.

Section 4. In addition to cases in which freedmen, free negroes and mulattoes are now by law competent witnesses, freedmen, free negroes or mulattoes shall be competent in civil cases, when a party or parties to the suit, either plaintiff or plaintiffs, defendant or defendants; also in cases where freedmen, free negroes and mulattoes is or are either plaintiff or plaintiffs, defendant or defendants. They shall also be competent witnesses in all criminal prosecutions where the crime charged is alleged to have been committed by a white person upon or against the person or property of a freedman, free negro or mulatto: Provided, that in all cases said witnesses shall be examined in open court, on the stand; except, however, they may be examined before the grand jury, and shall in all cases be subject to the rules and tests of the common law as to competency and credibility.

Section 5. Every freedman, free negro and mulatto shall, on the second Monday of January, one thousand eight hundred and sixty-six, and annually thereafter, have a lawful home or employment, and shall have written evidence….

Section 6. All contracts for labor made with freedmen, free negroes and mulattoes for a longer period than one month shall be in writing, and a duplicate, attested and read to said freedman, free negro or mulatto by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to performed, of which each party shall have one: and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.

Section 7. Every civil officer shall, and every person may, 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 without good cause…. Provided, that said arrested party, after being so returned, may appeal to the justice of the peace or member of the board of police of the county, who, on notice to the alleged employer, shall try summarily whether said appellant is legally employed by the alleged employer, and has good cause to quit said employer. Either party shall have the right of appeal to the county court, pending which the alleged deserter shall be remanded to the alleged employer or otherwise disposed of, as shall be right and just; and the decision of the county court shall be final.

Certain Offenses of Freedmen

Section 1. That no freedman, free Negro, or mulatto not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, dirk, or Bowie knife; and, on conviction thereof in the county court, shall be punished by fine, not exceeding $10, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer….

Section 2. Any freedman, free Negro, or mulatto committing riots, routs, affrays, trespasses, malicious mischief, cruel treatment to animals, seditious speeches, insulting gestures, language, or acts, or assaults on any person, disturbance of the peace, exercising the function of a minister of the Gospel without a license from some regularly organized church, vending spirituous or intoxicating liquors, or committing any other misdemeanor t e punishment of which is not specifically provided for by law shall, upon conviction thereof in the county court, be fined not less than $10 and not more than $100, and may be imprisoned, at the discretion of the court, not exceeding thirty days.

Section 3. If any white person shall sell, lend, or give to any freedman, free Negro, or mulatto any firearms, dirk, or Bowie knife, or ammunition, or any spirituous or intoxicating liquors, such person or persons so offending, upon conviction thereof in the county court of his or her county, shall be fined not exceeding $50, and may be imprisoned, at the discretion of the court, not exceeding thirty days….

Section 5. If any freedman, free Negro, or mulatto convicted of any of the misdemeanors provided against in this act shall fail-or refuse, for the space of five days after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs and take such convict for the shortest time.

The South Carolina Black Code

South Carolina followed Mississippi with a code only slightly less harsh, but more comprehensive in regulating the lives of “persons of color,” defined as including anyone with more than one-eighth Negro blood. Its major features included the following:

1. Civil Rights: The Southern Black Codes defined the rights of freedmen. They mainly restricted their rights. But the codes did grant black persons a few more civil rights than they possessed before the Civil War. South Carolina’s code declared that “persons of color” now had the right “to acquire, own and dispose of property; to make contracts; to enjoy the fruits of their labor; to sue and be sued; and to receive protection under the law in their persons and property.” Also, for the first time, the law recognized the marriages of black persons and the legitimacy of their children. But the law went on to state that, “Marriage between a white person and a person of color shall be illegal and void.”

2. Labor Contracts: The South Carolina code included a contract form for black “servants” who agreed to work for white “masters.” The form required that the wages and the term of service be in writing. The contract had to be witnessed and then approved by a judge. Other provisions of the code listed the rights and obligations of the servant and master. Black servants had to reside on the employer’s property, remain quiet and orderly, work from sunup to sunset except on Sundays, and not leave the premises or receive visitors without the master’s permission. Masters could “moderately” whip servants under 18 to discipline them. Whipping older servants required a judge’s order. Time lost due to illness would be deducted from the servant’s wages. Servants who quit before the end date of their labor contract forfeited their wages and could be arrested and returned to their masters by a judge’s order. On the other hand, the law protected black servants from being forced to do “unreasonable” tasks.

3. Vagrancy: All Southern Black Codes relied on vagrancy laws to pressure freedmen to sign labor contracts. South Carolina’s code did not limit these laws to unemployed persons, but included others such as peddlers and gamblers. The code provided that vagrants could be arrested and imprisoned at hard labor. But the county sheriff could “hire out” black vagrants to a white employer to work off their punishment. The courts customarily waived such punishment for white vagrants, allowing them to take an oath of poverty instead.

4. Apprenticeship: Southern Black Codes provided another source of labor for white employers—black orphans and the children of vagrants or other destitute parents. The South Carolina code authorized courts to apprentice such black children, even against their will, to an employer until age 21 for males and 18 for females. Masters had the right to inflict moderate punishment on their apprentices and to recapture runaways. But the code also required masters to provide food and clothing to their apprentices, teach them a trade, and send them to school.

5. Courts, Crimes, and Punishments: South Carolina’s Black Code established a racially separate court system for all civil and criminal cases that involved a black plaintiff or defendant. It allowed black witnesses to testify in court, but only in cases affecting “the person or property of a person of color.” Crimes that whites believed freedmen might commit, such as rebellion, arson, burglary, and assaulting a white woman, carried harsh penalties. Most of these crimes carried the death penalty for blacks, but not for whites. Punishments for minor offenses committed by blacks could result in “hiring out” or whipping, penalties rarely imposed on white lawbreakers.

6. Other Restrictions: South Carolina’s code reflected the white obsession with controlling the former slaves. It banned black people from possessing most firearms, making or selling liquor, and coming into the state without first posting a bond for “good behavior.” The code made it illegal for them to sell any farm products without written permission from their white employer, supposedly to guard against stealing. Also, blacks could not practice any occupation, except farmer or servant under contract, without getting an annual license from a judge.
For Reading, Discussion, and Writing

  1. What civil rights, if any, did these laws confer on freed black men and women?

  2. Why did white Southerners believe that a separate code of laws applying only to “persons of color” was necessary?

  3. In what ways did these laws limit the freedom of African Americans in Mississippi and South Carolina?

  4. Did former masters exercise any control over their former slaves? To what extent did these laws limit the freedom of white Mississippians?

  5. Northerners protested that the Southern Black Codes attempted to restore slavery. Do you agree or disagree? Why? Were these laws different from the laws governing slaves? If so, how and why?

  6. Do you think that the U.S. government should have confiscated lands owned by Confederate leaders to provide “40 acres and a mule” to the landless freedmen? Why or why not?

  7. What do these laws suggest about white Southerners’ anxieties and fears regarding the end of slavery?

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