On November 25, 1865, Mississippi’s first postwar legislature approved “An Act to Confer Civil Rights on Freedmen, and for other Purposes.” The practical meaning of emancipation remained uncertain in the immediate aftermath of war, and white Mississippians took it upon themselves to offer some legal parameters for black freedom. Like later civil rights acts that would be passed by Congress, Mississippi’s conferred basic rights on African Americans, such as the right to own property, contract for work, marry, and access the court system. However, the Mississippi law, which became known as the first southern “Black Code,” was fundamentally unlike the national protections that would later come from the national government. The Black Codes in Mississippi and other southern states were designed not so much to confer civil rights, as for “other Purposes”: to extend state control over African Americans and to serve the interests of white employers of black labor.
Most importantly, Mississippi’s law required African Americans to show proof of employment after the beginning of 1866 or be fined as a “vagrant.” Those freedmen unable to pay the fine would be bound out to employers, with the fine deducted from their earnings. This requirement meant that most African Americans would be forced to contract their labor on terms determined by former slave owners. In other states like South Carolina, the Black Codes actually set forth permissible labor conditions reminiscent of plantation slavery, including work hours from sunup to sundown. Even the leisure time of plantation workers could be regulated by contract. Though the Black Codes gave African Americans the right to accumulate property, Mississippi’s code banned the renting and leasing of land outside of cities. This meant that African Americans could not manage land or labor on their own terms; their daily activities would be subject to their employer’s authority. Another provision made it illegal for potential employers to entice laborers already under contract to leave for better terms. Civil officers were even empowered to “arrest and carry back” freedmen who broke their contracts—a policy reminiscent of antebellum slave patrols.
Additionally, Mississippi’s Black Code, and others that followed, limited the practical freedom that freedpeople found in southern towns. The statute’s expansive definition of vagrancy included “all rogues and vagabonds,” as well as “beggars, jugglers, or persons practicing unlawful games or plays,” thus targeting men and women who aimed to make money apart from white-controlled contract labor. Not only work, but consumption and town-based leisure came under regulation. Those who “misspend what they earn” or “misspend their time by frequenting houses of ill-fame, gaming-houses, or tippling shops” would be “deemed and considered vagrants.” Another provision undertook to prevent the “unlawful assembling” of freedpeople, “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.”
Some portions of the Black Codes made explicit racial distinctions, but in other cases the activities that they targeted were implicitly understood as those that African Americans engaged in out of leisure or economic necessity. When the Mississippi and South Carolina Black Codes provoked outrage from the northern public, subsequent southern legislatures passed statutes that were colorblind in their language, but still racial in their application and enforcement. According to Alabama planter John W. DuBois, “the vagrant contemplated was the plantation negro.”
Thus, one lesson of the Black Codes is that colorblind laws may still be enforced with racial bias or have more adverse consequences for a particular social group. Historian W. Caleb McDaniel has authored an excellent op. ed. for Time, in which he links the 2014 death of Eric Garner, an African American accosted by New York policemen for selling cigarettes in violation of state tax regulations, with a longer history colorblind legislation controlling black lives and livelihood. The Black Codes should remind us, as McDaniel does in his post, that contemporary laws should be understood in the context of social outcomes, and also in the context of history. Government power can, and has, been used to marginalize particular social groups.
The Black Codes also show that freedom and slavery are not neat opposites, and that even in the absence of slavery, worker’s freedoms are constituted by government power. To some Americans in 1865, “free labor” meant little more than the right to contract one’s labor and receive compensation. Southern freedpeople as well as the urban workers of northern cities would come to insist in the late 1860s that true freedom requires government protection from oppressive labor conditions. As Gregory Downs demonstrates in his recent book, After Appomattox, government power is a necessary foundation for rights. Many of the regulations set up by the Black Codes were invalidated, first by the United States military, and then by national legislation. Thus, while the Black Codes remind us of the need to treat institutions like the law critically, they also teach us the necessity of constructing institutions that guarantee real, practical freedom.
Brian K. Fennessy
Sources: Eric Foner, Reconstruction: America’s Unfinished Revolution: 1863-1877; Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War; Laws of Mississippi, 1865