Confederate States: Black Codes

Encouraged by President Johnson’s evident intention to return to them the management of their own affairs, Southern legislators, elected by white voters, passed what came to be called Black Codes. Their very evident purpose was to reduce free blacks to a new kind of legal servitude distinguished by all the disadvantages of slavery and none of its advantages–a state, many argued, that was worse than slavery itself. That the Black Codes were not the result of a brief lapse in judgment on the part of Southern legislatures or the work of extremists but rose, rather, out of the famous grassroots is indicated by an ordinance passed immediately after the war in the small town of Opelousas, Louisiana; it stated that “no negro or freedmen shall be allowed to come within the limits of the town of Opelousas without special permission from his employers. Whoever shall violate this provision shall suffer imprisonment and two days work on the public streets, or pay a fine of five dollars.” Any Negro found on the streets of the town after ten o’clock in the evening had to work for five days on the public streets or pay a $5 fine. The ordinance further provided:

“No negro or freedman shall be permitted to rent or keep a house within the limits of the town under any circumstances. . . . No negro or freedman shall reside within the limits of the town . . . who is not in the regular service of some white person or former owner. . . . No public meetings or congregations of negroes or freedmen shall be allowed within the limits of the town. . . . No negro or freedman shall be permitted to preach, exhort, or otherwise declaim to congregations of colored people without a special permission from the mayor or president of the board of police.. .. No freedman … shall be allowed to carry firearms, or any kind of weapons…. No freedman shall sell, barter, or exchange any article of merchandise within the limits of Opelousas without permission in writing from his employer In the parish of St. Landry it was required “that every negro [is] to be in the service of some white person, or former owner. …

In Alabama the Black Codes stipulated that it was the duty of all “Civil officers” of a county to report “the names of all minors whose parents have not the means, or who refuse to support said minors.” They might be treated in the same way, arrested, fined, and then sentenced to work off their fines. In bidding for the services of “said minor . . . the former owner . . . shall have preference.” In Mobile unemployed blacks, those who had no “fixed residence or [could not] give a good account of themselves,” were required by another section of the code “to give security for their good behavior for a reasonable time and to indemnify the city against any charge for their support In the event they could not meet this requirement, they were, again, “to be confined to labor for a limited time, not exceeding six calendar months . . . for the benefit of said city.” Also in Alabama, municipalities were authorized to “restrain and prohibit the nightly and other meetings or disorderly assemblies of all persons and to punish for such offences by fixing penalties not exceeding fifty dollars for any one offence Again if the accused were not able to pay the fine, he or she might be sentenced to labor for a period of time not exceeding six months.

The laws of Florida resembled those of Alabama but were, if anything, more severe since a vagrant might be hired out for twelve months. No “negro, mulatto, or person of color” was allowed in Florida and most other Southern states to “keep any bowie-knife, dirk, sword, firearms, or ammunition” without a license. A black owning any weapon “of any kind” had to surrender his arm or arms to the informer, “stand in the pillory … for one hour, and then [be] whipped with thirty-nine lashes on the bare back.” The same penalty might be invoked for “any person of color . . . who shall intrude himself into any religious or other public assembly of white persons or into any railroad-car or other vehicle set apart for the accommodation of white persons.” The South Carolina legislature decreed that no black man “shall pursue the practice, art, trade or business of an artisan, mechanic, or shopkeeper, or any other trade or employment besides that of husbandry, or that of a servant under contract for labor, until he shall have obtained a license from the judge of the district court, which license shall be good for one year only.” A black shopkeeper or peddler had to pay $100 a year for a license. If a black man under contract for his labor left or was fired before the end of his contract time, he must “forefeit his wages for that year up to the time of quitting.” Moreover, any person “giving or selling to any deserting freedman, free negro, or mulatto, any food, raiment, or other things shall be guilty of a misdemeanor” punishable by a fine of up to $200, and be subject to suit by the employer. In virtually every instance the inability to pay a fine would result in a sentence to labor for a period ranging from six months to a year.

A section of the Louisiana code stipulated that “every adult freed man or woman shall furnish themselves with a comfortable home and visible means of support within twenty days after the passage of this act,” and anyone failing to do so “shall be immediately arrested by any sheriff or constable . . . and . . . hired out . . . to some citizen, being the highest bidder, for the remainder of the year.” Laborers under contract were not allowed to keep livestock, and all time spent away from the job was to be charged against them at the rate of $2 a day, to be worked out at the end of the contract period. An earlier Louisiana law required that all agricultural workers “make contracts for labor during the first ten days of January for the entire year.” In the case of sickness the laborer lost his wages for the days absent, “and where the sickness is supposed to be feigned for the purpose of idleness, double the amount shall be deducted.

In addition, poll taxes were imposed in every state, ranging in amount from Georgia’s $1 per head on every man between the ages of twenty-one and sixty to $2 in Alabama on every person between the ages of eighteen and fifty, and to $3 in Florida. A black man could not buy or rent land except in a city. South Carolina required that a black man pay an exorbitant fee to engage in trade or open a store. Nor, in that state, could he serve on juries. Unemployment was treated as a crime, and the unemployed could be sentenced to work without pay.

In order to understand the impulse behind the Black Codes, we must keep in mind that white Southerners were entirely convinced that the freedmen presented a fearful menace to white society both by refusing to work (thereby becoming public charges and, more serious, bankrupting all planters who depended on them as a labor force) and by performing violent acts against their former masters. But plainly the principal motivation for the Black Codes was economic. White Southerners were determined to force freed blacks to work for them on the terms and under the conditions they prescribed. They were determined to dominate their ex-slaves almost as completely as they had dominated them under the institution of slavery itself. There was nothing about the simple fact of emancipation to alter, in the slightest degree, the white image of the black man or woman. Quite the reverse. As we have seen, under slavery many blacks had been protected to a degree at least by the closest personal contacts with their masters and mistresses (as well as by their dollar value). Both races had trusted these ties to mitigate the harshest aspects of the system. Emancipation destroyed many, if not all, of these relationships or substantially altered them. Whites could no longer, for example, assume that loyalty and, indeed, love would be part of a relationship with any black man or woman. Removed from the “civilizing” and “refining” influences of the plantation (at least that was how the former masters and mistresses viewed it), the freed blacks must lapse back into that “savagery” and “barbarism” from which slavery had rescued them. Bizarre as such a notion seems in retrospect, it was the virtually universal paranoia of the South. Only by keeping these facts constantly in mind can we begin to understand the recklessness with which the South defied Northern opinion by enacting the Black Codes. One would think that a few minutes reflection would have convinced any reasonable white man south of the Mason-Dixon Line that the simplest dictates of self-interest required that they act with caution and forbearance in regard to the rights of their newly freed slaves. Any other course had to play into the hands of the most intractable enemies of the South. Undoubtedly there was some typical fire-eating Southern intransigence in the enactment of the codes. But it must also be conceded, I believe, that the men who passed them believed literally that they had to do so to preserve themselves, their families, and what was left of their fortunes from a rising tide of blacks determined to devour their substance, rape their wives, and exact a bloody vengeance for years of suffering and cruel oppression. That this corrosive fear, this incapacitating anxiety, did not relate to any substantial body of real facts made it not less compelling to white Southerners. They were a people, after all, schooled in violence. A violent response to a threatened danger was the only response they knew. They could not have been wholly indifferent to or unaware of the risks they were running in terms of anticipatable Northern reactions. But the immediate issue–what was to be done with the freedman–was a far more pressing matter than possible congressional reactions. In addition, the South undoubtedly misread the political situation in the North. The words and actions of the President produced a false sense of security in Southern minds.

In any event, we can hardly fail to agree with William Sinclair, the black historian of Reconstruction, who wrote apropos of his discussion of the Black Codes: “The ballot probably would not have been bestowed upon [the black], certainly not at the time nor in the way and manner it was, if the South had been lenient toward him and shown a disposition to respect the Emancipation Proclamation and the Thirteenth Amendment as accomplished results; and protected him in life and property, the right of contract, marriage relations, locomotion, the privilege of schools, and other just and equitable relations, irrespective of the ballot All true enough, but to have accomplished this, the white South would have had to forget or reject everything it had believed and maintained for the previous century and more. It would have had, virtually overnight, to confess that it had been wholly mistaken about the nature and character of people of African origin and that slavery, the heart and essence of its famous culture,” had been a horror based on a misconception. Such a course might have gratified the North (which gave no material indication that it was prepared to go so far in regard to its own black citizens), but it was asking more of the South than it was possible for it to concede without losing what we today like to call its identity. Individuals can express repentance, ask for forgiveness from those they have wronged, and thereby experience “redemption.” But I am not aware that a nation or a large segment thereof has ever done so. It was evidently the one thing that the South could not do; it could not collectively repent. So the tragedy of slavery could not end; the nightmare had to continue. The South was given a chance to put its own house in order in a form that would not violate the newly achieved rights of black citizens and, even more important, Northern opinion, and it emphatically rejected it. There are deeper levels of irony. If the South had simply been resourceful enough to bide its time, perhaps making a few tentative gestures toward the free blacks, any disposition in the North for “radical” Reconstruction would have been disarmed. “The hands of the nation,” in Sinclair’s words, “would have been tied hard and fast. The insistence on state rights would have prevented any legislation by Congress which might have interfered with the Black Code. The Fourteenth and Fifteenth Amendments to the Constitution of the United States, would, obviously, have been impossible.” Taking off from Sinclair’s analysis, we cannot emphasize too strongly the doubleness of the South’s dilemma. The fact that the Southern states were unable to follow the course that reason and political expediency dictated is incontrovertible evidence that it was psychologically impossible for them to do so. Viewed another way, it was even necessary that they should not. If Sinclair was right; if some surface accommodation on the part of the South would have handcuffed the champions of Radical Reconstruction in the North and aborted the Fourteenth and Fifteenth Amendments, then must we not conclude that just as the actions of the South were inevitable, so they were essential to the passage of Radical Reconstruction and to the initiation of that process by which black people came eventually to be able to begin to claim their rights as American citizens?

The Black Codes are important for another reason. A substantial class of historians of both Northern and Southern origins (it turned out that Jefferson Davis’s anxieties about having New England historians tell the story of the South’s “struggle” were largely groundless; it might be argued that, on the whole, Northern historians have done better by the South than by the North) has been disposed, over the years, to argue that Radical, or Congressional, Reconstruction was a terrible error; that the South should have been left alone to work out its problems in its own way and by its own lights. But the prompt passage, under Presidential Reconstruction, of the Black Codes is an insurmountable stumbling block to this thesis. By their passage the Southern states made crystal clear their Rhadamanthine determination to deny freed blacks the most basic political, social, economic, and constitutional rights. When we have said everything that it is possible to say in explanation and exculpation of the codes, there can be no question that they were entirely incompatible with any conceivable theory of democratic government or social justice. For the United States to have acquiesced in them would have been to have made a mockery of thirty years of antislavery agitation and, indeed, to have conceded to the South the most doggedly held article of its faith–the irredeemable inferiority of African Americans and, beyond that, their inability to function as citizens of a democratic society. It would be another two or three decades, when the war, for most Americans, had faded to a romantic dream, before any substantial number of Americans living north of the Mason-Dixon Line would be willing publicly to acquiesce in that dogma. By that time the generous ardor of the abolitionists for black rights had been largely forgotten.

It must also be added that the Black Codes alone did not fully measure the intractability of the South. Southern Unionists on September 3, 1866, met in a convention in Philadelphia and presented a resolution to Congress calling for support and protection by the government. “Every original Unionist in the South,” it read, “has been ostracized. … More than one thousand devoted Union soldiers have been murdered in cold blood since the surrender of Lee, and in no case have their assassins been brought to judgment.” A few months earlier, in July, a convention of Union men meeting in New Orleans was raided by ex-Confederates and more than two hundred Union men were killed or wounded.

While the Black Codes of Virginia and North Carolina were less severe than those of the other Southern states and while in Tennessee the effort to pass such a code was defeated by Unionists, the critical point is that the South did not believe them to be in any way harsh or unfair. Even Welles had to admit that “the tone of sentiment and action of people of the South is injudicious and indiscreet in many respects. I know not if there is any remedy, but if not, other and serious disasters await them,–and us also perhaps, for if we are one people, dissension and wrong affect the whole.” When the municipal elections in Richmond were overturned by the military commander there, Welles wrote, “the Rebels have been foolish and insolent, and there was wanting a smart and stern rebuke rightly administered. From various quarters we learn that the Rebels are organizing through the Southern States with a view to regaining political ascendency, and are pressing forward prominent Rebels for candidates in the approaching election.”

In addition to framing constitutions little different, in most instances, from those under which they had fought the war and electing wholly white legislatures that proceeded to pass Black Codes, most states elected Senators and Representatives to serve in the Congress of the United States who had been active in the rebel cause. All this was done with at least the tacit approval of the President, who clearly hoped to present Congress when it assembled in the fall with a fait accompli. According to William Wilkins Glenn, Johnson told a group of Radical Republican Congressmen: “The South has done more in fourteen months than I expected to see accomplished in several years. Slavery is abolished. The Confederate debt is repudiated. The people are submissive. What more do you want? Why do you go on demanding exaction after exaction? You are actually trying to cut the heads of the Southern [men] arid thus leave the legs to manage political affairs. I must oppose such policy.”

 Johnson’s policy of restoring the rebellious states to the Union at once and virtually without conditions as regards the civil rights of blacks brought him into immediate conflict with the congressional leaders of his own party, most spectacularly Sumner and Stevens.