Black Codes

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In 1849 Ohio repealed most of its black codes, including those provisions discouraging black migrants from coming to the state.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.

Mississippi

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

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.

See also Fifteenth Amendment; Fourteenth Amendment

Bibliography

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)
Updated bibliography