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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. Antebellum 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 statehood, Oklahoma, would adopt elaborate systems of segregation, which had some of the elements of the older black codes, but were different in significant ways.
Antebellum Northern Black Codes
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.
Antebellum Southern Black Codes
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, ifa 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.
Post-Civil War Southern Black Laws
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 Committee’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.
References:
- 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: 415M82.
- –, 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.
- 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, AAL: University of Alabama Press.
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