3.4.2 The Old South (1861-1877): Coming to Grips with Emancipation


The postwar black codes, 1865-66

  • During the months after the Civil War’s close, every former Confederate state enacted a new black code.  Some enacted harsh codes, explicitly designed to keep blacks as close to a state of slavery as possible; others enacted milder codes.  Key features of the black codes included:
  • Labor contract laws which limited black workers’ right to choose their employment by preventing other employers from competing for their labor once they had signed a contract, and which.  Some black codes also restricted black workers’ rights to object to working conditions or even leave the plantations where they worked.  On the other hand, some states provided a measure of protection to black workers by requiring employers to put contracts in writing and explain them to the workers.
    • Apprenticeship laws, which many former masters used as a tool to try to effectively re-enslave former slave children.
    • Vagrancy laws, which were often used to temporarily re-enslave blacks who could not pay their debts or could not pay fines assessed for petty crimes.
    • Testimonial and jury laws prohibiting blacks from testifying against whites and serving on juries.
    • Criminal laws imposing harsher criminal penalties on blacks than whites.
    • Miscegenation laws prohibiting interracial marriage.
  • The black codes attracted much unfavorable attention in the North and played an important role in Congress’s decision to impose its own reconstruction program on the former Confederate states in 1867.  When new governments took power under Congressional Reconstruction, they eliminated or softened many parts of the black codes.
     
  • Codes in the coastal Upper South were milder than those in other regions.  The chart below summarizes the key features of each code; it can be compared with similar tables for the interior Upper South (§ __), deep South (§ __) and Texas (§ ___) to see how black code differed from region to region within the South.

BLACK LAWS

Delaware

Maryland

Virginia

North Carolina

Economic controls

Black labor contracts:  laws prohibiting competition for labor

 

 

X

X

Black labor contracts:   must be in writing

 

 

X

X

Black labor contracts:  laborers forfeit all wages if quit before end of contract term

 

 

 

 

Apprenticeship:  Parental poverty is sufficient grounds for forced apprenticeship of children

 

 

 

 

Apprenticeship:  “bad character” is sufficient grounds for forced apprenticeship of children

 

 

 

 

Apprenticeship:  former master given preference as new master

 

 

 

X

Apprenticeship:  apprentice must be given trade and education

 

 

X

 

Mobility controls

Vagrancy laws toughened

X

 

X

X

Restrictions on black immigration into state preserved

X

 

X

 

Statutory prohibition of black jury service

 

 

 

 

Restrictions on assembly of blacks

X

 

 

 

Civil rights

Court testimony:  blacks allowed to testify only against other blacks

X

X

X

X

Explicit discriminatory criminal penalties against blacks

 

 

 

X

Restrictions on blacks’ use of weapons

 

 

 

 

Anti-miscegenation laws

X

 

 

X


Coming to grips with emancipation:  the courts confront apprenticeship laws 

In Matter of Ambrose – North Carolina, 1867 (61 N.C. 91); Beard v. Hudson – North Carolina, 1867 (61 N.C. 180)

  • Apprenticeship was an American institution from colonial times to the late 19th century.  Most apprenticeship laws in effect at the end of the Civil War were designed to protect children of indigent parents and illegitimate children from poverty.  Children found to be in need were apprenticed until adulthood and were to be given a trade and a basic education.  Some laws gave their parents hearing rights and required courts to give their wishes weight; some laws did not.  After the Civil War, the laws took on a new racial cast as some former masters tried to use them to regain control of former slave children.  Southern courts made little effort to discourage the application of apprenticeship laws to children but many, such as the North Carolina supreme court in Ambrose and , made clear that black parents would be given a real hearing before they were deprived of their children.  
  • Abuse of the apprenticeship laws was most severe in Maryland:  as many as 10,000 children were apprenticed, mostly to former masters, between 1864 and 1867.  Judge Hugh L. Bond of Baltimore waged a lonely and heroic struggle against the tide:  he consistently granted petitions of black parents to issue habeas corpus writs release their children from servitude, to the point the 1866 Maryland legislature restructured state courts to deny him this power.  After 1867 the movement faded as white Marylanders reconciled themselves to emancipation, and a new constitution enacted that year prohibited abusive apprenticeship practices. 

“I know it is difficult to get out of a net, to change ideas after you are fifty or sixty years old … .but they have no right to force us younger people, who have new ideas and are to live under a new system, to hold their exploded views. … They must not expect me to go the gait they paced fifty years ago; they must not expect the Eastern Shore [of Maryland] like a province of China, where men do the same things father and son, for a thousand years.”  – Judge Hugh L. Bond (1867)


Coming to grips with emancipation:  resistance to social equality

State v. Hairston – North Carolina, 1869 (63 N.C. 451)

  • Most white Southerners grudgingly accepted postwar civil rights laws that granted freed slaves basic rights such as the right to hold property, control their own labor and travel freely; and most acquiesced in political rights laws granting blacks the right to vote and hold office. 
  • But white Southerners of all stations fiercely resisted attempts to enact social equality:  for example, laws requiring schools, theaters, restaurants and other public places to be integrated or allowing blacks and whites to intermarry.  Courts in the coastal upper South and other parts of the Confederacy consistently rejected arguments that segregation laws violated equal protection rights:  they viewed segregation as a natural and eternal part of Southern life, equally beneficial to both races, and they could not understand let alone condone the idea that others might view it differently.  It would require more than a century to change this view.

“[We oppose] all other measures intended or calculated to equalize or amalgamate the negro race with the white race, politically or socially … and … any and every measure designed or having the effect to promote the equality of the negro with the white man in any of the relations of life.” – Delaware Legislature (1873) (responding to Massachusetts senator Charles Sumner’s proposed federal law prohibiting segregation in public places)

“[The proposed law] will arrest the enlightenment of the colored population (in whose improvement the people of Virginia feel a lively interest) … counteract the pacification and development now happily progressing … [and] reopen wounds now almost healed.” – Virginia Legislature (1874) (responding to Sumner’s proposed law)
Freedmen receiving assistance, Richmond, Virginia (1866) - courtesy Library of Congress

Freedmen near New Bern, North Carolina (1863) - courtesy Library of Congress







































“It is a clear dictate of justice that no man shall be deprived of his rights or person or property, without the privilege of being heard; … there can be no case where notice can be dispensed with, and the actual presence of the person ought only to be dispensed with where he has intelligent friends present who can see that his interests are properly guarded.” – Justice Edwin Reade, in Ambrose

“It is best that the colored populations should be satisfied that they are liable to no unlawful impressments, and that they should see that what is required of them has the sanction of the law.  It may then be hoped that they will be contented, and will cheerfully submit to what they might otherwise mischievously resist.” – Justice __, in Beard



[It] is gratifying to know that the [miscegenation] law has the sanction of both races.  It is no discrimination in favor of one race against the other, but applies equally to both … neither the Civil Rights Bill, nor our state constitution was intended to enforce social equality, but only civil and political rights.” – Justice __, in Hairston

 


U.S. Senator Charles Sumner - courtesy Library of Congress