Mississippi’s “Act to Confer Civil Rights on Freedmen, and for other Purposes”

Black Codes Harpers

“Slavery is Dead (?),” from Harper’s Weekly, 12 January 1867. These illustrations contrast an enslaved African American being sold as punishment for a crime with a freedman being whipped by a public official, a punishment for crime prescribed under the 1865 and 1866 Black Codes.

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

“Rights of property excepting as to slaves”: Land Restoration on Edisto Island

Engraving from Harper's Weekly, 25 July 1868

Engraving from Harper’s Weekly, 25 July 1868

On October 19, 1865, what historian Eric Foner calls one of the “most poignant confrontations” of the Reconstruction era unfolded between the head of the Freedmen’s Bureau and the emancipated African Americans of Edisto Island, South Carolina.

Oliver Otis Howard, a major general in the Union Army, had been appointed in May to direct the government agency responsible for assisting former slaves in their transition to freedom. He was a graduate of Bowdoin College as well as the United States Military Academy. During the Civil War, he developed a reputation as “the Christian general” because of his steadfast evangelical piety. When he stood at the front of Edisto Island’s Episcopal Church 150 years ago, his audience of former slaves was likely aware of Christian faith. They also would have noticed his empty right sleeve, signifying the arm he had lost to the war. Most of all, they were aware that Howard represented the government’s new responsibilities toward its people. Congress had empowered the Freedmen’s Bureau to provide immediate relief to refugees, mediate disputes between black and white southerners, secure justice for laboring freedpeople, and, most significantly, distribute confiscated lands.

The freedpeople of Edisto Island had been the beneficiaries of federal power since November 1861, when the Union Navy captured Port Royal and then steadily took control of the surrounding islands. The evacuation of white landowners from the islands left them free from the power of white southerners. Though freedpeople elsewhere would not experience freedom in the complete absence of their former masters, in other ways the South Carolina and Georgia Sea Islands were what Willie Lee Rose calls a “Rehearsal for Reconstruction.” Here, black freedom would begin to take definition.

Independent land ownership is what freedpeople knew would most give substance to their freedom. With land of their own, they would not have to depend on white southerners for wages or be subject to their control. African Americans on the Sea Islands had banded together to purchase lands that the government considered abandoned and which were seized either by the Treasury Department for unpaid taxes or taken under the Confiscation Acts if the owner’s disloyalty could be established. Additionally, in January 1865, Union General William T. Sherman issued orders that reserved the Sea Islands and parts of the low country coast for the settlement of African American refugees. An inspector would oversee the distribution of 40 acres to each family. By May, the duty of allocating confiscated lands was given to Howard’s agency.

However, when Howard met with the freedpeople of Edisto, it was with regret on the part of the major general and trepidation on the part of the former slaves. Though Howard wanted to continue the work of land redistribution, President Andrew Johnson decided in September that all confiscated lands not already sold should be returned to white southerners. Johnson put pressure on Howard to mediate between the white landowners flooding back onto Edisto and the current residents who had gained possessory title through Sherman’s military order. Howard was reluctant, but understood he was supposed to make concessions to white southerners—defeated, disloyal men, but otherwise legal owners of property.

Former slaves, now independent landholders, gathered in Trinity Episcopal Church in the center of the island. Rumor having preceded Howard’s visit, “dissatisfaction and sorrow,” “noise and confusion” pervaded the building, as Howard later recalled. Before Howard could give up on his unfortunate mission, an African American woman succeeded in harmonizing the discordant voices by introducing a hymn. As they sang “Nobody Knows the Trouble I Seen, Nobody But Jesus,” the crowd steadied itself to collectively face the troubles to come. Howard then delivered his address. He explained the president’s policy of conciliating the vanquished. He told the freedpeople that they did not hold absolute title to the land, and that they should make the best terms they could with the white landowners. He beseeched them to show Christian forgiveness toward their former masters.

Immediate responses came from the galleries, including shouts of “No, no!” and the just accusation that land would be taken “from us who are true, always true to the Government” and given “to our all-time enemies!” A more formal response came a day later from a committee of three freedpeople, to whom Howard had submitted the proposals of the white landowners. Henry Bram, Ishmael Moultrie, and Yates Sampson, as the Committee of Freedmen on Edisto Island, based their appeal on ethics of loyalty and suffering. Again accusing the government of “Haveing concluded to befriend Its late enemies” and of neglecting “the principles of common faith between Its self and us Its allies In the war,” they claimed to be more faithful and loyal: “we Have not been treacherous,  we Have not for selfish motives allied to us those who suffered like us from a common enemy & then Haveing gained our purpose left our allies In thier Hands.” In response to Howard’s call for reconciliation, the freedpeople also claimed greater suffering than the dismembered veteran. “You ask us to forgive the land owners of our Island,  You only lost your right arm. In war and might forgive them.  The man who tied me to a tree & gave me 39 lashes & who stripped and flogged my mother & my sister & who will not let me stay In His empty Hut except I will do His planting & be Satisfied with His price & who combines with others to keep away land from me well knowing I would not Have any thing to do with Him If I Had land of my own.–that man, I cannot well forgive.”

The confrontation between Howard and the Edisto freedpeople exposed the competing forces of race and loyalty during Reconstruction. Whether Howard truly forgave former Confederates or not, it was all too easy for him to ask African Americans to forgive them. White northerners and white southerners shared a common past as the privileged race in American society. African Americans would continually have to appeal to ethics of suffering—that they had suffered under slavery and on the battlefield—and to loyalty—that they remained faithful to the government and to white authorities in government.

The confrontation also exposed the dilemma of property rights in postwar nation-building. Howard responded to the Committee of Freedmen on Edisto Island by writing that “the Government does not wish to befriend its enemies and injure its friends, but considers a forgiven man in the light of a citizen restored to rights of property excepting as to slaves.” The irony is that by restoring “rights of property excepting as to slaves,” the government would make it harder for men and women who once were slaves to accumulate property. It would make it more difficult for those who were considered property to establish themselves as property-holding equals. The Committee of Freedmen expressed this quandary in a letter to the unsympathetic president: “Shall not we who Are freedman and have been always true to this Union have the same rights as are enjoyed by Others?  Have we broken any Law of these United States?  Have we forfieted our rights of property In Land?–  If not then! are not our rights as A free people and good citizens of these United States To be considered before the rights of those who were Found in rebellion against this good and just Goverment…”

National authorities had responded to rebellion by destroying slavery, but in the aftermath would prove so conservative on property rights that they would not economically empower former slaves against former rebels. Indeed, the government would take property away from the Edisto freedpeople. Though full of regret, Howard hoped that the now dispossessed slaves would be able to make enough money working for whites to purchase their own land. African Americans knew that their former masters would not be willing to see them rise up to a level. With the playing field, once even due to land redistribution, now made uneven due to land restoration, white landowners would not desire to see it even again.

Brian K. Fennessy

Sources: Willie Lee Rose, Rehearsal for Reconstruction: The Port Royal Experiment; Eric Foner, Reconstruction: America’s Unfinished Revolution: 1863-1877; Autobiography of Oliver Otis Howard, Vol. 2; Steven Hahn, et al, eds, Freedom: A Documentary History of Emancipation, 1861-1867, Series 3, Vol 1

Regime Change in the Defeated South

In the fall of 1865, white southerners in the defeated Confederate states elected representatives to state constitutional conventions. Following a process outlined by President Andrew Johnson, Mississippi, Alabama, and South Carolina had already done so during the summer. In October, North Carolina, Florida, and Georgia did the same. 150 years ago, a power vacuum left by the overthrow of Confederate insurgency was being filled. Who would be allowed to step into that vacuum?

Ostensibly, the federal government would determine who would rule the South. Military authorities worked to restore law and order during the summer and fall, but President Andrew Johnson signaled his unwillingness to subject defeated southerners to a prolonged occupation. Neither did most northerners recognize any need in 1865 to contravene democratic institutions. Instead, the national government would shape postwar governance by devolving control to southerners themselves.

But which southerners? Southern whites who had remained loyal to the Union claimed national victory as their own. African Americans, who had been freed by a combination of national power and their will to seize the opportunities created by war, saw it as their victory too. Finally, there were men who had supported the Confederacy, but opposed secession at the outset or wearied on its prospects toward the end. This last group had the most experience with governance and well as the most resemblance to the old regime.

By allowing prewar voters (white southerners) to choose their own representatives, President Andrew Johnson limited the possibilities for transforming power relations in the southern states. The loyalist white minority could not be empowered unless voting and officeholding privileges were constrained, and neither Union men, nor former Confederates were willing to see African Americans in positions of authority. The process chosen by Johnson to rebuild a broken nation signaled that penitent Confederates could resume local control.

Contemporary observers as well as modern historians have debated whether the first representatives elected by defeated whites marked a change in leadership or not. On the one hand, most of the delegates to the constitutional conventions had supported the Confederacy and were hardly new to politics. In this sense, they were part of a traditional elite. On the other hand, they had largely opposed secession in 1861 or represented the war weariness of white southerners late in the war. By choosing them, voters were rejecting more high-spirited Confederate politicians. White southerners were conscious of northerners’ suspicious gaze, but they clearly considered these moderate men a reasonable choice and perhaps showed real disillusionment with warmongers.

Were such men the right choice? Surely they were the most educated and experienced, and they represented some political distancing from secession. However, southern Unionists called attention to the complicity of these men with the Confederacy. African Americans also saw little difference between them and their former masters who had divided the Union. Northerners became disturbed by the delegates’ wrangling over symbolic matters—like whether to repeal secession or declare it null and void, to abolish slavery in their constitutions or simply recognize its destruction.

The choice of anti-secessionists and disillusioned Confederates meant stability for postwar governance, a minimal change akin to when a political party out-of-power was elected before the war. Slavery would be abolished without a broader reconceptualization of political authority.

It is important to recognize that this choice was not merely that of white southern voters, but that of national leaders. Johnson desired postwar normalcy too, which meant both democracy and white supremacy. Most disastrously for the long run, this choice from Washington lowered expectations among former Confederates about how much they would have to concede in defeat.

In more modern examples of nation-building, democratic principles and a desire for stability have clashed with other objectives of what a postwar society should look like. Do you transfer power to marginalized groups and back their rule with force, or do you return power to a more traditional source once victory is won? Is the first option a moral imperative, mere imperialism, or both? If the second option is chosen, how possible is it to empower a new group later on? The sesquicentennial of the first postwar constitutional conventions may not provide straightforward answers to the problems of international and domestic nation-building today, but it does highlight the contours of the dilemma.

Brian K. Fennessy

Bibliography and recommended reading: Dan T. Carter, When the War Was Over: The Failure of Self-Reconstruction in the South, 1865-1867 (Baton Rouge: Louisiana State University Press, 1985), Richard H. Abbott, The Republican Party and the South, 1855-1877 (Chapel Hill: University of North Carolina Press, 1986), Mark Wahlgren Summers, The Ordeal of the Reunion: A New History of Reconstruction (Chapel Hill: University of North Carolina Press, 2014).

The Reunion Blog

The purpose of this blog is to stimulate public awareness of America’s post-Civil War era, known as Reconstruction. By offering reflections on events that happened 150 years ago, I intend it to follow the “sesquicentennial,” or 150th anniversary, of Reconstruction as it unfolds.

The idea to create this blog came from two sources. In 2010, the New York Times started a “Disunion” blog to commemorate the sesquicentennial of the Civil War. Almost daily from November 2010 to April 2015, “Disunion” tracked the timeline of secession and war. The contributions of journalists, professional historians, and independent scholars brought to a wide readership the voices of the past and their own historical analysis. When “Disunion” wound down in April 2015, several followers of the blog suggested that the Times should continue the project into Reconstruction through a “Reunion” blog. The Times has not pursued this idea, though it did follow up with a few posts on the war’s aftermath and a debate on how Reconstruction should be remembered.

A second source of inspiration includes scholars of Reconstruction (see one of several) and leaders in the National Park Service who continue to call for greater engagement with the public over the sesquicentennial of Reconstruction. Though Americans may not be attracted to the complex and frequently discomforting stories of these years, Reconstruction raises questions that resonate with our own time, including questions about citizenship, the rule of law, and national character.

I intend this to be a “Reunion” blog, with a nod toward the Times, though my current resources prevent me from writing with equal frequency. To begin, I will aim for 2-3 posts per month, reflecting on sesquicentennial events that I choose. In deciding what to select, I will try to balance aspects of this diverse era that interest me with other topics that I feel the American public should remember. I will not shy away from connecting Reconstruction to current issues, believing as I do that the past is both a foreign country and a collective inheritance to the present.

I am also thinking about this blog in the long-term. The sesquicentennial of Reconstruction will last at least until 2027 (the 150th anniversary of the federal government pledging to no longer intervene in the South and the region returning to “home rule” and white supremacy). From now until then, I hope this blog will take off with guest contributors who could make it better approximate the collaborative effort that was the Times’s “Disunion.” By the sesquicentennial of the southern states’ Republican constitutions, I may also be a professor with an army of students to conscript for the service of public history. I can imagine, for example, asking them to read testimony from the congressional hearings on the KKK and contribute short posts about the patterns of violence in particular counties. It is my hope that this blog will continually expand in its potential to generate conversations about America’s collective past and to influence the popular understandings of Reconstruction.

A few prefatory remarks on how I conceive of my subject, writ-large, are appropriate. I understand Reconstruction as an exercise in nation-building. From Washington, the national leaders set the rules for new southern governments, restructured who counted as a citizen, debated economic aid for the South, and responded to terrorist insurgency. Northern migrants to the South tried to upend local values and remake society in the northern image. Most white southerners resisted northern attempts to nation-build in the South, though the hearts and minds of some were susceptible to conversion. African Americans sought greater control over their lives and local communities. They asked that the government put power into loyal hands and not return control to former rebels. Congress, the Union army, and homesteaders reconstructed the nation in the conquered territories of the West through violence and the confiscation of land. Northern willpower to maintain the Reconstruction project is also part of this story. As with American attempts at nation-building abroad in the 21st century, northern men and women in the 1870s asked whether there was still a duty to intervene in the South or whether intervention could be the cause of greater problems. All in all, men and women of all races were transformed, their lives reconstructed, as they renegotiated their relationship to each other and to the nation-state.

Any posts written on this blog are the intellectual property of the author, and therefore his or her copyright.

Brian K. Fennessy