Slave Codes, Black Codes & Jim Crow: Codifying the Color Line

In today’s episode we are discussing some laws in the United States that governed the bodies and lives of enslaved people and follow how those laws changed, or didn’t change, through emancipation and into the late twentieth century. So buckle up for a long look at Slave Codes, Black Codes, and Jim Crow laws in America.

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Transcript for: Slave Codes, Black Codes and Jim Crow Laws: Codifying the Color Line

Written and Researched by Elizabeth Garner Masarik

Produced by Elizabeth Garner Masarik and Averill Earls, PhD

Elizabeth: If you’re a consumer of social media you’ve probably come across hashtags like #ExistingWhileBlack and #LivingWhileBlack to document the ways in which white society attempts to police the very existence of Black people in America. How did we get to a place where these sources of sobering humor have become trending hashtags? What is it about American society and American culture that allows, or dare I say encourages, 911 calls on Black people taking a nap in a student break room or grilling in a public park?

Averill. In today’s episode we are discussing some laws in the United States that governed the bodies and lives of enslaved people and follow how those laws changed, or didn’t change, through emancipation and into the late twentieth century. So buckle up for a long look at Slave Codes, Black Codes, aNd Jim Crow laws in America.

I’m Elizabeth

And I’m Averill

And we are your historians for this episode of Dig.

Averill: Our discussion today is going to focus on laws that governed and restricted Black people in America. Namely slave codes, black codes, and Jim Crow laws. You will occasionally hear these terms used interchangeably, particularly in referring to slave codes as black codes. Slave codes refer to laws governing enslaved people that were enacted by U.S. colonies or states that permitted slavery before the American Civil War. Within these codes, or laws, enslaved people were considered property, not people.

Elizabeth: We are going to mostly refer to Black Codes as laws passed by ex-Confederate states that governed freedpeople in their states. These laws varied greatly from state to state as to their restrictiveness and details. Many of these laws did grant certain basic human rights to freedpeople (albeit not always enforced), but they also placed severe restrictions on them. Additionally it’s important to point out that some Northern states enacted Black Codes well before the Civil War. Yet after the Civil War, many white Northerners, but not all of course, viewed the enactment of Black Codes in the former Confederate states as an attempt by the South to re-enslave Black people through state laws.

Averill: Laws regulating slavery in the United States developed slowly and unevenly. Slave laws in Spain’s American empire differed from those of France’s and England’s American holdings and vice versa. Laws governing slavery in the English colonies of North America became much more repressive than those of say French Louisiana or Spanish Texas, but enforcing those laws almost always depended on local authorities. Nevertheless, they existed throughout what would become the United States of America. Most of the English colonies in North America and the Caribbean passed formal slave codes between the 1670s and 1750s. Slaves there had almost no legal standing, and freed slaves and freeborn Black Americans had few civil rights. Individuals had to carry “freedom papers” wherever they went, as proof of their status, and those without them ran the risk of being re-enslaved.

Elizabeth: In English North America, particularly in the Chesapeake region, legal status for captured African people was initially ambiguous. The first twenty Africans arrived in the region in 1619, brought by English privateers from an intercepted Spanish slave ship. Records are incomplete. Most were treated as slaves but some were freed after serving a term of indenture. It seems that some of these early captured Africans in the English colonies were treated as indentured servants with the opportunity for freedom after serving a set number of years. In fact some freed Africans were able to buy land and even other servants or slaves after their freedom.

Averill: But there were differences. The big one of course is that they weren’t offered indenture like say an impoverished English or Irish person was. They weren’t given the choice on if they wanted to move to the English colonies and serve an indenture. They were captured from their homelands. Secondly, negro was always written next to their names on any official document, which tells us that they were certainly seen as “different,” or outside of whiteness. Historian Jennifer Morgan does some excellent work exploring how early constructions of racial ideology justified the economic system of slavery in Britain’s colonies in the Caribbean and North America and how English ideologies of racial hierarchies formed.

Elizabeth: However, over a matter of a few years, race became a signifying factor in determining the status

of most enslaved Africans. As early as the 1620s, Virginia law barred Black men from serving in the militia. In 1639 Virginia passed a law which stated, “All persons except the African slaves are to be provided with arms and ammunitions or be fined at the pleasure of the governor and the council.”

Averill: In 1643, Virginia passed a tax law, that imposed taxes on African women but not on white women. This essentially codified Black women as “workers,” and only workers, because they were taxed the same as men. White women and their labor were not taxed, which deemed their work outside of taxable work. Historian Kathleen Brown did some amazing work on showing how this law resulted in codifying Black labor as well as shaping class structures in the English colony. As more African slaves were brought to the Chesapeake, understandings of race and class began to morph and ideas about what it meant to be a “proper” women took shape around ideas about race. It also further stratified class among white women. If a white woman still had to work in the fields for example, it lowered her class status because she was now doing the dirty work that was associated with blackness.

Elizabeth: Another law was passed in Virginia in 1662, which defined slavery through matrilineal lines and meant that enslaved Black people faced the possibility of life servitude. The law stated, “Whereas some doubts have arisen whether children got by any Englishmen upon a Negro shall be slave or Free, Be it therefore enacted and declared by this present Grand assembly, that all children born in this country shall be held bond or free only according to the condition of the mother.” Now the wording here is interesting because the first sentence of the law itself shows us that there were some questions, some ambiguity, about the status of mixed-race children. Remember, this is a patrilineal society where land and status is handed down through the male line. So ideas about race and ideas about patriarchy were challenged with the addition of mixed-race children. Questions of “would the children inherit all of the trappings of their father?” butted up against white colonists perceptions of race.

Averill: And this law also shows us how Black women were vulnerable to sexual exploitation from their masters. Slaveowners appropriated enslaved women’s reproductive capacities as a means to increase their own wealth because they realized the economic value of a slave force which could reproduce itself. Bondage denied enslaved women protections against rape and coercion. Enslaved women were routinely raped by white masters, which in turn made them convenient scapegoats for apologizers of white male lust and violence.

Elizabeth: Another law passed in Maryland in 1664 restricted marriage between enslaved people and white women. The law stated, “That whatsoever free-born [English] woman shall intermarry with any slave… shall serve the master of such slave during the life of her husband; and that all the issue of such free-born women, so married shall be slaves as their fathers were.” This says that any white woman who married a slave will become a slave herself, and any children they produce will become slaves also. So think back to the previous law, that said mixed-race children will follow the lines of the mother, but this law says that mixed-race children will follow the lines of the father if he was a slave. So the laws of inheritance and servitude were changed based on race – it’s important to point out that white people were not deemed slaves but were indentured servants, so this only holds true for Black people – so the law only applies to children born of Black or African enslaved people and also children of enslaved Native Americans held in the colonies.

Averill: A law in South Carolina took all questions away in regards to the status of enslaved people when it passed a 1712 law stating, “Be it therefore enacted… That all negroes, mulattoes, mestizo’s or Indians, which at any time heretofore have been sold, or now are held or taken to be, or hereafter shall be bought and sold for slaves, are hereby declared slaves; and they, and their children, are hereby made and declared slaves….” So the wording in this law leaves no question as to the status of enslaved people and their offspring and officially makes slavery a life sentence based solely on race.

Elizabeth: Up to now, all of these laws were passed in England’s colonial settlements. In French, and later Spanish, and then again French Louisiana, slave codes developed differently. The Code Noir, translated as Black Code, was introduced in Louisiana in 1724. It was based on earlier codes developed in French Caribbean colonies. Make sure to listen to Marissa’s episode in this series discussing slave revolts in the Caribbean for more info on slavery in the Caribbean colonies. French laws governing slavery in Louisiana gave greater rights to slaves than their British counterparts. Slave owners were required to baptize their slaves in the Catholic faith and to give them Sundays off for worship. Enslaved people were allowed to marry and separation of families was not permitted. However, interracial marriage was prohibited like in the British colonies. Also, enslaved people could not be freed at their master’s discretion. Instead, the Superior Council had to approve all requests for freedom and they set an extremely high bar for granting freedom papers. Spain took control of Louisiana colonies in 1769. Spanish law allowed enslaved people to purchase their freedom, which amounted to their equal market value. By the end of the Spanish period in 1803, 1,490 formerly enslaved Black people in New Orleans alone had acquired their freedom by cash payments.

Averill: Following the Louisiana Purchase, the growing free black population was augmented by three thousand French-speaking refugees from Spanish Cuba in 1809. By 1810, 7,585 free persons of color were living in the Louisiana Territory. The Territory as a whole housed about 35,000 enslaved people and 35,000 free white people. And you can learn more about this Territorial period and the movement of slave owners to Spanish Texas in our Texas Independence/historical memory episode. When the United States purchased the Louisiana territory in 1803, Louisiana ended the right of self purchase. A law in 1806 stipulated that only slaves age thirty and older who had demonstrated “honest conduct,” so like, they hadn’t tried to run away or committed a criminal act, could be freed.

Elizabeth: In 1830 Louisiana passed a law that required freedpeople that did not receive exemptions to leave the state within thirty days. Former owners were required to post a $1,000 bond to ensure their departure.This statute was softened the following year, but is still relevant for showing how emancipation became extremely difficult for enslaved people as slave codes hardened during the antebellum period. It also became a crime to publish anything that criticized white supremacy and all Black people were barred from testifying in court. In 1852 the state assembly passed a law requiring freed slaves to emigrate to Liberia. That law was rescinded in 1855 but in 1857 the Louisiana state legislature prohibited emancipation altogether. And just for the sake of time, we won’t go into the vibrant community, particularly in New Orleans, of the free communities of color in Louisiana but if you’re interested in the subject we suggest starting with Mary Gehman’s book, The Free People of Color in New Orleans, and go from there.

Averill: Ok, so pulling back a little bit. Let’s look at slavery and the United States Constitution. During the debates over the framing of the Constitution, the issue of slavery continually divided the white men who met in Philadelphia (there were no women at the Constitutional Convention). Many slaveholders as well as dedicated abolitionists were delegates at the meetings. The delegates from South Carolina were resolute in their determination to defend slavery, so much so that Gouverneur Morris from Pennsylvania complained that he was being forced to decide between angering the southern states and having their delegates walk out completely, and doing injustice to “human nature.” Many felt the same as Morris but in the end, compromise was chosen over justice.

Elizabeth: The Constitution of the United States of America allowed the importation of enslaved Africans to continue for an additional twenty years, in which time approximately 170,000 enslaved people were imported into the U.S. South Carolina and Georgia alone imported 100,000 of those people. The Constitution also included a fugitive slave clause, Article IV, Section 2, Clause 3, which stated that “no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour be due.” This gave slave laws “extraterritoriality,” meaning that an enslaved person who escaped to a state where slavery was abolished was still considered a slave. The clause required states to return escaped enslaved people back to their owners, meaning that bondage followed the person, it did not end at state lines. The Fugitive Slave Act of 1793 further strengthened the original clause in the Constitution.

Averill:The Constitution did not grant the national government the authority to interfere with slavery in the states. Additionally, the Constitution included the three-fifths clause which meant that three-fifths of the slave population would be counted in determining each state’s representation in the House of Representatives and its electoral votes for president, giving southern states far greater power in national affairs than their free populations warranted. Out of the first sixteen presidents, twelve of them were southern slaveholders.

Elizabeth: As the nineteenth century rolled on, most states, particularly southern states, enacted new slave codes. These laws became increasingly more harsh and restrictive in the 1830s. One reason these harsher laws were passed was in reaction to increasing agitation against slavery and recent slave uprisings. In June of 1831 Nat Turner, an enslaved man and preacher, led a small group of followers through Southampton County, Virginia from farm to farm killing and assaulting white inhabitants. More people joined Turner’s group as they marched and their ranks swelled to eighty people. By the time the militia took Turner and his followers down, sixty white people had been killed. Needless to say, this slave revolt completely freaked out white people all across the South.

Averill: Additional tensions mounted with the rise of the abolitionist movement in the North. William Lloyd Garrison launched the abolitionist journal, The Liberator, in 1831. Lydia Maria Child, a popular writer of sentimental novels and the publisher of the first monthly periodical for children in the United States, published An Appeal in Favor of That Class of Americans Called Africans, in 1833, where she argued that birthright alone, not race, should be the determining factor in who was considered to be an American. She also argued that slaves should be emancipated immediately with no compensation to slaveholders. Subsequently a large portion of her readership turned against her.

Elizabeth: The rise of the abolitionist press and Nat Turner’s rebellion were factors that drove southern states to enact more restrictive slave codes. Virginia passed new laws that prohibited any Black person, either free or slave, from acting as preachers, a law that was impossible to enforce. They also strengthened their militia and slave patrol system. Free Black people were prohibited from owning firearms and it became illegal to teach enslaved people to read. Other slave states quickly followed suit; slaves could not leave plantations or farms without their master’s permission, they could not strike a white person even in self-defense, they were barred from selling goods, they could not hire themselves out for money, and they could not visit the homes of whites or free blacks.

Averill: We’ve been talking about southern states mostly but northern states and western territories had their own sets of Slave and Black Codes as well. The Northwest Ordinance of 1787 chartered a government for the Northwest Territories and provided a method for admitting new states from the territory. Although the Northwest Ordinance prohibited slavery or involuntary servitude, territorial and later state laws permitted the retention of French slaves in the region. When Congress admitted Illinois as a state in 1818, the state’s constitution allowed the preexisting French slavery to continue and it permitted slavery at the salt mines in Massac County. Additionally, the Illinois constitution stated that children of enslaved people in the state were to be freed when they reached adulthood: for women that age was eighteen, for men it was twenty-one, meaning the last slave freed in Illinois would happen in 1839. Illinois law attempted to discourage immigration of Black people into the region. Black Codes in the state included laws that denied free Black men the right to vote and Black people were prohibited from immigrating to the state without a certificate of freedom. A person who had escaped bondage, so a fugitive, and entered the state could be sentenced to 35 lashes by a public official. State law made it illegal for three or more Black people to assemble in groups. Black people could not testify in courts, nor could they serve in the militia. This is just one example of how these types of laws were not relegated to the southern states alone.

Elizabeth: Several Northern states enacted legislation to protect free Black Americans and fugitive slaves through “personal liberty laws.” These laws stated that a slave catcher had to furnish corroborative proof that his captive was a fugitive and frequently accorded the accused the rights to trial by jury and appeal. They also intentionally neglected to enforce the Fugitive Slave Act of 1793. But personal liberty laws did not protect all Black people. In fact, the movie Twelve Years A Slave, based on the life of Solomon Northrup and the book he wrote, is a real-life example of how “fugitive” slave laws worked. Northrup was a free Black man living in New York but was captured in 1841 while working in Washington, DC. He was a musician who was tricked into traveling to DC for a concert and was kidnapped and sold into slavery in the South. He spent twelve years of his life in slavery before he was able to slip out a note to friends in New York, letting them know what happened. He was finally freed in 1853.

Averill: In 1850 Congress passed the Fugitive Slave Act as part of the Compromise of 1850. This law allowed slave catchers to capture any Black person with only an oral confirmation before a state or federal judge that the person was actually an escaped slave. Any U.S. Marshall who did not arrest or who refused to return a “runaway” would pay a penalty of $1,000. People suspected of escaping slavery faced arrest without warrant and could be turned over to a claimant who only had to make a sworn testimony that the escaped person was their property. Black people suspected of being runaways were not allowed a trial jury nor could they testify on their own behalf.

Elizabeth: Furthermore, any person aiding an escaped enslaved person was subject to six months’ imprisonment and a $500 fine. Also, “slave catchers” were given a bounty every time they captured a “runaway,” which as you can imagine, gave them an incentive to kidnap any Black person they could. The previous fugitive slave act of 1793 also gave a bounty to slave catchers, but the 1850 act had more teeth in it, and, coupled with the increasing tension between the North and the South, further enraged many abolitionists.

Averill: The 1850 Fugitive Slave Act became a touchstone in the North and many people were furious that they were now personally implicated in slavery. Abolitionists were outraged but it even set-off northerners who had been on the fence beforehand. Abolitionist Harriet Beecher Stowe wrote Uncle Tom’s Cabin, one of the most widely read books of the 19th century, in reaction to the 1850 Fugitive Slave Act. Needless to say, the Compromise of 1850 fueled the fires between the North and South.

Elizabeth: Okayyy, and then this big thing called the Civil War happened between 1861 and 1865. Now we’ve covered a lot of the Civil War in many of our other episodes, particularly Sarah’s episodes since she’s our resident expert on the American Civil War. So we’re going to jump ahead to Reconstruction and how Slave Codes were changed into Black Codes and how they morphed from there. I do think it’s important to mention though, how enslaved Black people in the South brought about their own emancipation during the war. Enslaved people began fleeing to Union lines from the first days of the Civil War. Initially Congress adopted a resolution affirming that the Union had no intention of interfering with slavery where it existed and many northern military commanders returned enslaved people who had fled to the Union lines back to their owners. However, the fact that the Confederacy was using slave labor as the major backbone of their military campaign, in addition to the extremely large numbers of enslaved people escaping across Union lines, pushed the Union military at the end of 1861 to adopt a plan to treat escaped Black people as “contrabands” of war, meaning property of military value subject to confiscation. These formerly enslaved people were housed in what they called “contraband camps.” Many passed along military intelligence to Union officials, offered critical knowledge of the South’s terrain, and joined the Union army.

Averill: When Andrew Johnson assumed the presidency after the assassination of Abraham Lincoln, he moved quickly to restore order to the South by placing power back in the hands of those that had traditionally held it, essentially allowing southern states to be dominated by former Confederates. These new governments in turn enacted new Black Codes, which pretty much amounted to taking their former Slave Codes, crossing out slave and adding black or negro into them. These laws were attempts to control newly freedpeople by denying them civil and human rights. White leaders in the South wanted to uphold their racial supremacy and keep their much-needed workforce in place. As early as November 1865, only six months after Appomattox, Mississippi passed a series of “Black Codes.” This was followed quickly by many other southern state legislatures. Here are some excerpts of the statutes that made up the Mississippi Black code.

Elizabeth: Under Civil Rights for Freedmen in Mississippi it states: All freedmen, free negroes and mulattoes may sue and be sued…may acquire personal property…and may dispose of the same in the same manner and to the same extent that white persons may: [but no] freedman, free negro or mulatto…[shall] rent or lease any lands or tenements except in incorporated cities or towns, in which places the corporate authorities shall control the same…

So here we see some basic civil rights, a Black person may hold personal property and have a stake in the court system but the code then goes on to regulate where a Black person can rent or lease any land. Also remember who is in control, former Confederates, so the guarantees listed in the first section weren’t always enforced.

Averill: In regards to marriage the Mississippi law states that all “freedmen, free negroes or mulattoes” who have been living together as husband and wife “shall be taken and held in law as legally married.” The law goes on to state however that it shall not be lawful for any freedman, free negro or mulatto to intermarry with any white person; nor for any person to intermarry with any freedman, free negro or mulatto; and any person who shall so intermarry shall be deemed guilty of felony, and on conviction thereof shall be confined in the State penitentiary for life…

Here we have a statute that legally upholds heterosexual marriage between Black people, but intermarriage between races is strictly forbidden. It’s important to point out that the statute includes “mulatto,” meaning a person born of a mixed race parentage, could not marry a white person and vise versa. So essentially the law recognized that mixed race heritage existed, primarily from white slave masters raping and coercing enslaved women I might add, but outside of the purview of slavery it becomes illegal to “mix” races.

Elizabeth: In regards to work the Mississippi Black Code stated that: All contracts for labor made with freedmen, free negroes and mulattoes for a longer period than one month shall be in writing… and if the laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.
…Every civil officer shall, and every person may, arrest and carry back to his or her legal employer any freedman, free negro, or mulatto who shall have quit the service of his or her employer before the expiration of his or her term of service without good cause; and said officer and person shall be entitled to receive for arresting and carrying back every deserting employee aforesaid the sum of five dollars…

So here we have an example of labor contracts that usually lasted one year. These contracts essentially relegated freedpeople to working for their former masters. If they left work they would be fined and or incarcerated and often put on a chain-gang. Additionally the person “catching” the freedperson who broke contract would be entitled to a five dollar “finders fee.” So not unlike payments that slave catchers received before the Civil War. The statute goes on to say that any person who knowingly employes a person who has broken one of these contracts will be subject to a misdemeanor. So again, like we saw with the Fugitive Slave Act, even those who might oppose these Black codes were also governed and controlled by these laws.

Averill: In the section of Apprentice Law the code states: …It shall be the duty …civil officers of … this State, to report to the probate courts of their respective counties semiannually…all freedmen, free negroes, and mulattoes, under the age of eighteen…who are orphans, or whose parent or parents have not the means or who refuse to provide for and support said minors; and thereupon it shall be the duty of said probate court to order the clerk of said court to apprentice said minors to some competent and suitable person …Provided, that the former owner of said minors shall have the preference when, in the opinion of the court, he or she shall be a suitable person for that purpose.
…In the management and control of said apprentice, said master or mistress shall have the power to inflict such moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law…

Okay, so this section says that twice a year local officials had to report anyone in their district they deemed unable to support themselves and those people would be “apprenticed” to a “suitable” person, giving preference to their former masters who would be allowed to use corporal punishment as they saw fit.

Elizabeth: In the section regarding “vagrancy” the law states: All freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawful assembling themselves together, 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, or living in adultery or fornication with a freed woman, freed negro or mulatto, shall be deemed vagrants, and on conviction thereof shall be fined in a sum not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars, and a white man two hundred dollars, and imprisonment at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months….

So this is saying essentially that if you’re Black, you better be working and you can’t meet in “unlawful” groups. This gives us insight into why the church was such an important African-American institution in post-bellum America, because it was literally one of the few places Black people could legally congregate! Furthermore, the law also prohibits white people from fraternizing with Black people or be subject to fine and imprisonment.

Averill: Moving on: …Any freedman, free negro, or mulatto committing riots, routs, affrays, trespasses, malicious mischief, cruel treatment to animals, seditious speeches, insulting gestures, language, or acts, or assaults on any person, disturbance of the peace, exercising the function of a minister of the Gospel without a license from some regularly organized church, vending spirituous or intoxicating liquors, or committing any other misdemeanor, the punishment of which is not specifically provided by law, shall, upon conviction thereof in the county court, be fined not less than ten dollars, and not more than one hundred dollars, and may be imprisoned at the discretion of the court, not exceeding thirty days….

Okay, so basically doing anything white people don’t like. Got it.

Elizabeth: There’s more…If any freedman, free negro, or mulatto, convicted of any of the misdemeanors provided against in this act, shall fail or refuse for the space of five days, after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs, and take said convict for the shortest time.

Translation, will be put into the prison labor system or put into debt by a plantation owner to work for no wages. So about as close to slavery as you can get.

Averill: And then finally, I mean, there’s more of these but we’ll stop reading these legalize laws for now, there’s this section in regards to Penal Laws: …That no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife…¹.

So no weapons for African-Americans. Hmmmmm……

Elizabeth: All of these laws we’ve just read to you were enacted in Mississippi but other states were quick to enact similar Black Codes. To people in the North, who had just fought a four year-long war where more than half a million people died, to see these southern states pass these laws seemed like a revival of slavery in disguise. This spurred the more radical Republican elements in Congress, who were strongly abolitionist, strongly in favor of civil rights for African-Americans, and who favored a strong central government, to take action. The Black Codes helped spur the congressional Joint Committee on Reconstruction, whose members felt that ending slavery with the Thirteenth Amendment did not go far enough. Soon thereafter, Congress extended the life of the Freedmen’s Bureau to combat the Black Codes and in April 1866 passed the first Civil Rights Act, which established citizenship of African Americans.This legislation was enacted by Congress in 1865 but vetoed by President Johnson. Congress passed it again in April 1866 in order to support the Thirteenth Amendment. Johnson vetoed it again, and Congress came back with a two-thirds majority in each chamber and overcame the presidential veto. Following passage of the Fourteenth Amendment in 1868, Congress reenacted the 1866 Civil Rights Act in 1871. So language in the Civil Rights Acts and the Fourteenth Amendment resemble one another, but an amendment to the Constitution is a lot harder to overturn than a law or Act.

Averill: OK, so Congress, which was controlled by Republicans, opposed Black Codes by enacting legislation such as the Civil Rights Acts and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. The 14th Amendment guaranteed that anyone born in the United States, regardless of previous condition of servitude, had full citizenship, meaning they’re entitled to all the rights and privileges of being a citizen, and equal protection under the law. So think back to the abolitionist Lydia Maria Child who wrote that citizenship should be based on birth, not race. What was once considered completely radical in the 1830s was, by 1868, enshrined in the Constitution. To enforce these Reconstruction laws and amendments, Congress divided the southern region into military zones and sent federal troops to patrol these zones until the states rewrote their constitutions to recognize the 14th Amendment and the right for Black men to vote, guaranteed by the Fifteenth Amendment.

Elizabeth: Reconstruction essentially ended with the so-called Compromise of 1877. In 1876 there was a contested presidential election between the Republican candidate Rutherford B. Hayes and a Democratic candidate named Samuel J. Tilden. Tilden actually won the popular vote and Hayes won the electoral vote, which resulted in a months long standoff in Congress over how this election is going to end. Eventually they make kind of a backroom deal where Democrats and the Republicans agree that Hayes, the Republican, will get to be President in exchange the military forces that have been occupying the South would leave. So with Compromise of 1877, civil rights for Black Americans, particularly those living in the South, eroded as Congress, the U.S. Supreme Court, and northerners lost interest in the issue. This left no one in the South to enforce all of the Reconstruction laws and amendments and no one to protect Black Americans from white racial violence. “As Henry Adams, a black Louisianan, lamented, “The whole South—every state in the South—had got into the hands of the very men that held us as slaves.”

Averill: In the aftermath of the Compromise of 1877, a few African-Americans in some areas of the South continued to vote and serve in government offices into the 1890s, but the Compromise of 1877 marked the effective end of the Republican Party’s active support of civil rights for Black Americans. Within months, southern states passed laws disenfranchising Black Americans through poll taxes and grandfather clauses, and implemented racial segregation like separate train cars, schools, water fountains, swimming pools, and so on. Essentially, slave codes and black codes lived on in Jim Crow laws and other forms of discrimination until successfully challenged in the civil rights era of the 1950s and 1960s.

Elizabeth: These Jim Crow laws were enacted on the state, county, parish, and city levels. For example, in the early 1900s Atlanta, Georgia enacted a loosely worded vagarence and peonage law that compelled Black Atlanteans to accept employment or face jail time, not unlike the Mississippi Black Code we read earlier. These Atlanta laws also provided landholders with a claim on the debts of laborers and they could force tenants to remains on plantations or sell indebted tenants to other farmers.

Averill: Here are a few more examples of Jim Crow laws. A 1903 Arkansas law stated, “It shall be unlawful for any white prisoner to be handcuffed or otherwise chained or tied to a negro prisoner.”

Elizabeth: A 1911 Nebraska law said, “Marriages are void when one party is a white person and the other is possessed of one-eighth or more negro, Japanese, or Chinese blood.”

Averill: Here’s Mississippi law enacted in 1920, “Any person…presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes, shall be guilty of a misdemeanor and subject to a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both fine and imprisonment in the discretion of the court.”

Elizabeth: One from Birmingham, Alabama, 1930: “It shall be unlawful for a negro and white person to play together or in company with each other in any game of cards or dice, dominoes or checkers.”

Averill: Etcetera, etcetera, etcetera…

Elizabeth: Now if it sounds like these sorts of laws are directly in contradiction with the 14th Amendment which says that laws cannot target a specific race, that there’s equal protection under the law for everyone born in the United States, you’re right, that’s exactly what these laws are. They are a contradiction of the 14th Amendment and most other Reconstruction laws like the Civil Rights Acts. But, legal interpretation is sometimes… uh… questionable? To say the least? Let’s explore these contradictions a little more.

Averill: Ok so first in regards to marriage and anti miscegenation laws. Remember the 1865 Mississippi law that barred marriage between races? “it shall not be lawful for any freedman, free negro or mulatto to intermarry with any white person; nor for any person to intermarry with any freedman, free negro or mulatto”? Well, just one year after that law was passed, the U.S. Congress passed the Civil Rights Act of 1866 which stated: That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…. Under United States law, marriage was a contract, something we discuss in-depth in our Marriage in America and our Coverture episodes. So what this shows us is that state laws, like the one in Mississippi and many other states that prohibited marriage between races, actually contradicted U.S. law in regard to contract law. But those state laws stayed on the books until Loving v. Virginia in 1967, which was a civil rights decision of the United States Supreme Court which struck down all state laws banning interracial marriage.

Elizabeth: Another example is the 1896 Plessy v Ferguson case. In 1896 a Black man named Homer Plessy purposefully sat in the “whites only” train compartment. Plessy was very pale skinned and presented as white. So in order to show the sheer stupidity of the separate train car law, he made it clear to the people on the railroad that he was a Black man and he was going to sit in the white car. Essentially, he forced his own arrest so that he and his associates could challenge the constitutionality of segregated train compartments. The case went all the way to the Supreme Court, which ruled that it was fine to separate races as long as separate accommodations were equal. So through a bit of legal gymnastics, this is how separate but equal became a “thing.” And of course separate accommodations for whites and blacks were supposed to be equal when in reality they never were. In fact, the very separation itself implied inequality, which is what the NAACP argued in the Brown v Board of Education case in 1954.

Averill: And of course neither the Brown decision, nor the Voting Rights and Civil Rights Acts of the 1960s, ended segregation or racial prejudice in the United States. They just changed forms… again. When the courts outlawed overt segregation and Jim Crow laws in the ‘50s and ‘60s, many whites reacted by “privatizing” public spaces to avoid what some called “interracial intimacy.” As “whites only” signs were outlawed, some white people lost the ability to control how Black people could move through public spaces. Essentially, the word “public” became synonymous with “integrated,” and in their minds an affront to their racial supremacy. Historians Lizbeth Cohen, Kevin Kruse, and Thomas Sugrue, among many others, have tracked how white people fled from the “public sphere” by moving to the suburbs in order to avoid integration. White enclaves were made and protected by laws (or the absence of laws) concerning housing, transportation, education, and taxes. As Black and Brown people gained more civil rights and access to the rights of citizenship invested by the Fourteenth Amendment, public systems like welfare and public education became code words that stand for poor, Black, and Latino. As more people of color accessed these programs that – I might add – aided millions of white Americans in the years before, these programs became harder to access and stingier in their benefits.

Elizabeth: Laws are just that, laws. It takes people to enforce – or not enforce – them and it depends on the actions of those people as to how laws were enforced in various communities. Now, before we end on this kind of sour note, I want to take a moment to say that even with all of these legal ways white supremacy has been codified into our legal system, Black Americans have endured and added a vibrancy to American culture that is impossible to ignore. So go read some books on the Harlem Renaissance, Black feminism, community organizing, a history of Hip Hop – so many – to experience how both racism and courage has shaped Black America. So that this doesn’t have to seem like an unsolved chapter in our history, but one that moves us towards a shared understanding of the American value “all men are created equal.” In spite of this massive institutionalization of racism, Black America has persevered. And with that, we’ll leave you with the last stanza of Maya Angelou’s Caged Bird.

The caged bird sings with a fearful trill,
of things unknown, but longed for still,
and his tune is heard on the distant hill,
for the caged bird sings of freedom.

Averill: So that’s it for today. Make sure to subscribe and review our podcast. Follow us on Facebook, Twitter, Instagram, and Pinterest. Thanks for listening.

Sources:

The Civil Rights Act of 1866

Mississippi Black Code

Code noir, ou Édit du Roi, servant de règlement pour le gouvernement et l’administration de la justice, police, discipline et le commerce des esclaves nègres dans la province et colonie de la Loüisianne.

A Sample of “Jim Crow” Laws

Slavery and the Law in Virginia

Maya Angeloou,The Complete Collected Poems of Maya Angelou, ( Random House), p. 194.

Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Harvard University Press, 1998).

Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Omohundro Institute and University of North Carolina Press, 1996).

Lizbeth Cohen, A Consumer’s Republic: The Politics of Mass Consumption in Postwar America, (Alfred A. Knopf, 2007).

Heather Cox Richardson, The Death of Reconstruction :Race, Labor, and Politics in the Post-Civil War North, 1865-1901, (Harvard University Press, 2004).

Eric Foner, Reconstruction: America’s Unfinished Revolution, (New York: Harper Collins Publishers Inc, 1988).

David Fort Godshalk, Veiled Visions: The 1906 Atlanta Race Riot and the Reshaping of American Race Relations, (The University of North Carolina Press, 2005).

Lawrence M. Friedman, A History of American Law, Revised Edition (Simon and Schuster, 2010).

Kevin M. Kruse, White Flight: Atlanta and the Making of Modern Conservatism, (Princeton University Press , 2007).

Jennifer L. Morgan, Laboring Women: Reproduction and Gender in New World Slavery (University of Pennsylvania Press, 2004).

Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, (Oxford University Press, 2010).

Thomas Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit, (Princeton University Press; Revised edition, 2014).

Palmer, Vernon Valentine, Through the Codes Darkly: Slave Law and Civil Law in Colonial Louisiana, (Lawbook Exchange, 2012).

1. Laws of the State of Mississippi, Passed at a Regular Session of the Mississippi Legislature, held in Jackson, October, November and December, 1865, Jackson, 1866.