Black Codes

The Black Codes were laws governing the conduct of free African Americans. Black Codes existed before the Civil War, in fact many northern states had them. In 1832, James Kent wrote that “in most of the United States, there is a distinction in respect to political privileges, between free white persons and free coloured persons of African blood; and in no part of the country do the later, in point of fact, participate equally with the whites, in the exercise of civil and political rights.”

Since the colonial period, colonies and states had passed laws that discriminated against free blacks. Before the Civil War, Northern States that had prohibited slavery also enacted Black Codes: Connecticut, Ohio, Illinois, Indiana, Michigan and New York enacted laws to discourage free blacks from residing in those states. The defining feature of the Black Codes was broad vagrancy law, which allowed local authorities to arrest freed people for minor infractions and commit them to voluntary labor.

After the Civil War, white landowners acted to control the now “free” labor force through a system similar to the one that had existed during slavery. In late 1865, Mississippi and South Carolina enacted the first black codes. Mississippi’s law required blacks to have written evidence of employment for the coming year each January; if they left before the end of the contract, they would be forced to forfeit earlier wages and were subject to arrest.

In South Carolina, a law prohibited blacks from holding any occupation other than farmer or servant unless they paid an annual tax of $10 to $100. This provision hit free blacks already living in Charleston hard. In both states, blacks were given heavy penalties for vagrancy, including forced plantation labor sometimes.

Nearly all the southern states would enact their own black codes in 1865 and 1866. While the codes granted certain freedoms to African Americans- including the right to buy and own property, marry (within their race), make contracts and testify in court (only in cases involving people of their own race), the laws primary purpose was to restrict Black’s labor and activity.

Some states limited the type of property that blacks could own, while virtually all the former Confederate states passed strict vagrancy and labor contract laws, and “anti-enticement” measures designed to punish anyone who offered higher wages to a black laborer already under contract.

Blacks who broke labor contracts were subject to arrest, beating and forced labor. Apprenticeship laws forced many black minors into unpaid labor for white planters. The black codes were enforced by all-white police and state militia forces-often made up of Confederate veterans of the Civil War, across the South.

A central element of the Black Codes were vagrancy laws. States criminalized men who were out of work, or who were not working a job whites recognized. Failure to pay a certain tax, or to comply with other laws, could also be construed as vagrancy.

8 southern states allowed convict leasing. Convict leasing is a system in which state prisons hired out convicts for labor. This created a system that established incentives to arrest black men, as convicts were supplied to local governments and planters as free workers. Because of their reliance on convict leasing, southern states did not build any prisons to the late 19th century.
The restrictive nature of the codes and wide spread black resistance to their enforcement enraged many in the North, who argued that the codes violated the fundamental principles of free labor ideology. The Republicans in Congress passed the Civil Rights act of 1866, the 14th Amendment and 15th Amendment, and forced the Southern states to pass those laws before they could rejoin the Union.

In 1893-1909 every Southern state except Tennessee passed new vagrancy laws. These laws were more severe than those passed in 1865 and used vague terms that granted wide powers to police officers enforcing the law. Under the laws, in wartime, Blacks might be disproportionately subjected to “work or fight” laws, which increased vagrancy penalties for those not in the military.

In the south, the Black Codes gave way to Jim Crow laws, which remained in place until the 1960s Civil Rights movement. Many of the Southern vagrancy laws remained in force until the Supreme Court’s Papachristou v. Jacksonville decision in 1972. Although the laws were defended as preventing crime, the Court held that Jacksonville’s vagrancy law “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.”

Even after Papachristu, police activity in many parts of the United States discriminates against racial minority groups. Gang injunctions, which target young Black or Latino men who gather in public, are remnants of the Black Codes. Contemporary Black commentators have argued that the current disproportionate incarceration of African Americans, with a rise in prison labor, is comparable with the Black Codes.