THE “BLACK LAWS” OF 1865–68
One set of race distinctions deserves to be treated by itself. They have
long since become obsolete and were, during their existence, in a sense,
anomalous; yet they are, perhaps, the most illuminating from a
historical point of view of all the race distinctions in the law. They
were the result of the statutes that were enacted by the legislatures of
the Southern States between 1865 and 1868 for the definition and
establishment of the status of the Negro. The War closed in 1865; the
Fourteenth Amendment to the Federal Constitution was ratified July 28,
1868; and the Reconstruction régime in the South was not under way till
1868 or later. Therefore, during the interval between the close of the
War and the ratification of the Fourteenth Amendment or the beginning of
active Reconstruction, the Southern States were free to adopt such
measures as they saw fit to establish the relation between the races.
The legislatures faced a new problem, or rather an old problem increased
many fold in perplexity. They had to establish the industrial, legal,
and political status of 4,000,000 people who had recently been slaves
and were now freemen. It must be remembered that when the Southern
legislatures convened in 1865 their actions with regard to the Negro
were not beset by the limitations subsequently fixed by the Federal
Government. The first Civil Rights Bill, that of 1866, had not been
passed. The Southern States were at liberty to enact such statutes as
they thought proper and to draw upon their own experience and that of
the free States with regard to free Negroes.
“BLACK LAWS” OF FREE STATES
These statutes of 1865–68 are here called the “Black Laws.” This term
was first applied to the laws of the border and Northern States passed
before and up to the Civil War to fix the position of free persons of
color. It is well to make a cursory examination of these laws of the
free States, because they are prototypes of many of the statutes enacted
by the Southern States while unhampered by Federal legislation. All the
States, North as well as South, had previously faced the problem of the
free Negro and made laws concerning him. Naturally, therefore, the
South, now that all its Negroes were declared free, turned for
precedents to the other States which had already had experience with the
free Negro.
The following are some of the statutes that had been enacted with regard
to free Negroes by States lying outside of what was later the
Confederacy:
Maryland,[56] in 1846, denied Negroes, slave or free, the right to
testify in cases in which any white person was concerned, though it
permitted the testimony of slaves against free Negroes. The
Constitution[57] of 1851 forbade the legislature to pass any law
abolishing the relation of master and servant.
Delaware,[58] in 1851, prohibited the immigration of free Negroes from
any State except Maryland: moreover, it forbade them to attend camp
meetings, except for religious worship under the control of white
people, or political gatherings. A law of 1852 provided that no free
Negroes should have the right to vote or “to enjoy any other rights of a
freeman other than to hold property, or to obtain redress in law and in
equity for any injury to his or her person or property.”
Missouri,[59] in 1847, forbade the immigration into the State of any
free Negro; enacted that no person should keep a school for the
instruction of Negroes in reading and writing; forbade any religious
meetings of Negroes unless a justice of the peace, constable, or other
officer was present; and declared that schools and religious meetings
for free Negroes were “unlawful assemblages.”
Ohio, which probably had the most notorious “Black Laws” of any free
State, “required colored people to give bonds for good behavior as a
condition of residence, excluded them from the schools, denied them the
rights of testifying in courts of justice when a white man was party on
either side, and subjected them to other unjust and degrading
disabilities.”[60]
Indiana,[61] in 1851, prohibited free Negroes and mulattoes from coming
into the State, and fined all persons who employed or encouraged them to
remain in the State between ten and five hundred dollars for each
offense.[62] The fines were to be devoted to a fund for the colonization
of Negroes.[63] A law, which was submitted to a special vote and passed
by a majority of ninety thousand, prohibited intermarriage between the
races, provided for colonization of Negroes, and made incompetent the
testimony of persons having one-eighth or more Negro blood.[64]
Illinois,[65] in 1853, made it a misdemeanor for a Negro to come into
the State with the intention of residing there, and provided that
persons violating this law should be prosecuted and fined or sold for a
time to pay the fine.[66]
Iowa,[67] in 1851, forbade the immigration of free Negroes,[68] and
provided that free colored persons should not give testimony in cases in
which a white man was a party.
Oregon,[69] in 1849, forbade the entrance of Negroes as settlers or
inhabitants, the reason being that it would be dangerous to have them
associate with the Indians and incite the latter to hostility against
white people.
This sketch of the “Black Laws” of some of the free States, incomplete
as it is, is sufficient to show how those States regarded free Negroes.
First, they tried to keep Negroes out; and, secondly, they subjected
those that remained to various disabilities. When the first Civil Rights
Bill was before Congress, the strongest opposition to its passage was on
the ground that it would compel the free States to repeal these “Black
Laws” and allow Negroes to intermarry with whites, attend the same
schools, sit on juries, vote, bear firearms,[70] etc. The free Negro
constituted a distinct class between the slave and the master, his
condition being more nearly that of a slave.
The Southern States had been afraid of the free Negro. He was a sort of
irresponsible being, neither bond nor free, who was likely to spread and
foster discontent among the slaves. When a slave was emancipated, it was
desired that he leave the State forthwith. Thus, the Virginia
Constitution[71] of 1850 provided that emancipated slaves who remained
in the Commonwealth more than twelve months after they became actually
free, should forfeit their freedom and be reduced to slavery under such
regulations as the law might prescribe. The free Negro was truly between
the devil and the deep sea. If he stayed in the State, he would be
reënslaved; if he went to a free State, he would be liable to
prosecution there for violating the laws against the immigration of free
persons of color.
As one turns to the first laws passed by the Southern States after
Emancipation, he should keep in mind that these States were only
grappling with the old problem of the free Negro, now on a much larger
scale, which problem the free States had disposed of already in the
manner just seen. As yet, the Southern States had no conception of the
Negro as a citizen with inalienable rights to be recognized and
protected. For instance, the Constitution of Mississippi[72] of 1832, as
amended August 1, 1865, abolished slavery and empowered the legislature
to make laws for the protection and security of the persons and property
of freedmen, and to guard “them and the State against any evils that may
arise from their sudden emancipation.” And the laws of South
Carolina,[73] of the same year, provided that, “although such persons
[Negroes] are not entitled to social or political equality with white
persons,” they might hold property, make contracts, etc. except as
hereinafter modified.
RESTRICTIONS UPON MOVEMENT OF NEGROES
After 1865 there was comparatively little legislation as to the movement
of Negroes from one State to another. It would have been utterly
impossible to control the migration of the 4,000,000 Negroes then in the
United States. In States where the free Negroes were numbered by only
hundreds or even thousands, the entrance or exit of one was a noticeable
event. Where, however, Negroes were in the majority, a hundred might
have come or gone at once without being noticed. The Constitution of
Georgia[74] of 1865 empowered the general assembly to make laws for the
regulation or prohibition of the immigration of free persons of color
into that State from other places; but the legislature seems not to have
used this power.
Two years earlier, in 1863, the legislature of Kentucky[75] had declared
that it was unlawful for any Negro or mulatto claiming to be free under
the Emancipation Proclamation of January 1, 1863, or under any other
proclamation by the Government of the United States, to migrate to or
remain in the State. Any Negro violating this law was treated as a
runaway slave.
A law of South Carolina,[76] of 1865, provided that no person of color
should migrate to or reside in the State unless, within twenty days
after his arrival, he entered into a bond with two freeholders as
sureties in a penalty of one thousand dollars, conditioned on his good
behavior and for his support if he should become unable to support
himself. If he should fail to execute the required bond, he had to leave
the State within ten days, or be liable to corporal punishment. If,
after being so punished, he should still remain in the State fifteen
days longer, he was to be transported beyond the limits of the State for
life “or kept at hard labor, with occasional solitary confinement, for a
period not exceeding five years.” The same punishment of banishment for
life, or confinement and hard labor for a term was prescribed for any
person of color coming or being brought into South Carolina after having
been convicted of an infamous crime in another State.
That the Southern States believed that the day of the Negro as a laborer
was over was evidenced, not only by their efforts to keep Negroes out of
the State, but also by the fact that so many of them, during the first
years after the War, passed statutes encouraging and offering
inducements to foreign immigrants. The movement to bring foreigners into
the South is still going on, but it has never met with much success.
Although to-day many places, both in the North and in the South, do not
permit Negroes to reside within their borders or even to stay over
night, the above are apparently the last instances where attempts to
limit the movement of Negroes[77] have been made by State legislatures.
Most of the States have concluded to allow Negroes to come and go at
will, but to fix their status while in the State.
LIMITATIONS UPON NEGROES IN RESPECT TO OCCUPATIONS
From some occupations Negroes were wholly excluded; others, they were
permitted to engage in, only after obtaining licenses. The Alabama
Code[78] of 1867 provided that no free Negro should be licensed to keep
a tavern or to sell vinous or spirituous liquors. There had been a
statute of the same State which declared that a free Negro should not be
employed to sell or to assist in the sale of drugs or medicine, under a
penalty of one hundred dollars, but this had been repealed in 1866.[79]
In South Carolina,[80] it was unlawful for a Negro either to own a
distillery of spirituous liquors or any establishment where they were
sold. The violation of this law was a misdemeanor punishable by fine,
corporal punishment or hard labor. The law of this State[81] went still
further by enacting that no person of color should pursue or practice
the art, trade, or business of an artisan, mechanic, or shopkeeper, “or
any other trade, employment, or business (besides that of husbandry, or
that of a servant under contract for service or labor) on his own
account and for his own benefit, or in partnership with a white person,
or as agent or servant of any person” until he should have obtained a
license. This license was good for one year only. Before granting the
license the judge had to be satisfied of the skill, fitness, and good
moral character of the applicant. If the latter wished to be a
shopkeeper or peddler, the annual license fee was one hundred dollars;
if a mechanic, artisan, or a member of any other trade, ten dollars. The
judge might revoke the license upon a complaint made to him. Negroes
could not practice any mechanical art or trade without showing either
that they had served their term of apprenticeship or were then
practicing the art or trade. For violation of this rule, the Negro had
to pay a fine of double the amount of the license, one-half to go to the
informer.
In some States, there was a limitation upon the right of Negroes to hold
land as tenants. A statute of Mississippi[82] in 1865 gave them the
right to sue and be sued, to hold property, etc., but declared that the
provisions of the statute should not be construed to allow any freeman,
free Negro, or mulatto to rent or lease any lands, except in
incorporated towns or cities in which places the corporate authorities
should control the same. The same statute required every freeman, free
Negro, or mulatto to have on January 1, 1866, and annually thereafter, a
lawful home and employment with written evidence thereof. If living in
an incorporated town, he must have a license from the mayor, authorizing
him to do irregular job work—that is, if he was not under some written
contract for service; if living outside such a town, he must have a
similar license from a member of the board of police of his precinct.
Tennessee,[83] on the other hand, went to the length of expressly
throwing open all trades to Negroes who complied with the license laws
which were applicable to whites and blacks alike.
SALE OF FIREARMS AND LIQUOR TO NEGROES
A fruitful subject of legislation was that relative to the sale of
firearms to Negroes. On January 15, 1866, the legislature of Florida[84]
enacted a law declaring that it was unlawful for a Negro to own, use, or
keep in his possession or control “any bowie-knife, dirk, sword,
firearms or ammunition of any kind” unless he had obtained a license
from the probate judge of the county. To get the license, he had to
present the certificate of two respectable citizens of the county as to
the peaceful and orderly character of the applicant. The violation of
this statute was a misdemeanor punishable by the forfeiture to the use
of the informer of such firearms and ammunition and by standing in a
pillory one hour or by being whipped not over thirty-nine stripes.
In Mississippi[85] the law was that any freedman, free Negro, or
mulatto, not in the military service of the United States nor having a
specified license, who should keep or carry firearms of any kind or any
ammunition, dirk, or bowie-knife should be punished by a fine of not
over ten dollars, and all such arms, etc., should be forfeited to the
informer. The law further provided that, if any white person lent or
gave a freedman, free Negro, or mulatto any firearms, ammunition, dirk,
or bowie-knife, such white person should be fined not over fifty
dollars, or imprisoned not over thirty days. South Carolina[86] did
allow a Negro who was the owner of a farm, to keep a “shot-gun or rifle,
such as is ordinarily used in hunting, but not a pistol, musket, or
other firearm or weapon appropriate for purposes of war.”
It has been seen that some States forbade Negroes to make or sell
intoxicating liquor. Others went a step further and made it unlawful to
sell liquor to Negroes. It is worth noting that one of the early acts of
the legislature of Alabama[87] was to repeal such a law. But
Kentucky[88] forbade a coffee-house keeper to sell liquor to free
Negroes under penalty of a bond of five hundred dollars. Mississippi[89]
made it an offence, punishable by a fine of not over fifty dollars or
imprisonment for not more than thirty days, for a white man to sell,
give, or lend a Negro any intoxicating liquors, except that a master,
mistress, or employer might give him spirituous liquors, but not in
quantities sufficient to produce intoxication.
These laws against the sale of firearms and liquor to Negroes probably
grew out of a fear by the white people of a Negro uprising, such as had
occurred during slavery. The South was in such a turmoil immediately
after the War that stringent precautionary measures were considered
necessary. These statutes have analogies in the present laws of the
Western States against the sale of firearms and liquor to Indians. The
law of Arizona[90] declares that anyone who sells or gives intoxicating
liquor to an Indian is guilty of a misdemeanor, and shall be punished by
a fine of between one hundred and three hundred dollars or imprisoned
between one and six months, or both. The sale or gift or repair of
firearms was added in 1883.[91] Idaho[92] has a law very much the same,
making the fine, however, not over five hundred dollars or the term of
imprisonment not over six months, or both. Dakota Territory,[93] in
1865, made it a misdemeanor to sell or give liquor to Indians.
Nebraska,[94] in 1881, made it an offence punishable by a fine of fifty
dollars to sell liquor to them, and in 1891 made it a felony to sell or
give liquor to any Indian not a citizen, attaching a fine of not over
one thousand dollars or imprisonment in the penitentiary between two and
five years. New Mexico[95] makes the punishment a fine between twenty
and one hundred dollars or imprisonment not over three months. Utah[96]
makes the punishment a fine between ten and one hundred dollars. The law
of Oregon[97] made it lawful for every _white_ male citizen of the age
of sixteen to keep and carry certain arms, impliedly denying that right
to other races. Washington[98] made the punishment for selling or giving
liquor to Indians a fine of between twenty-five and one hundred dollars.
As late as 1903 one finds in the revised statutes of Maine[99] a
provision that one who sells or gives to an Indian intoxicating liquors
forfeits not less than five nor more than twenty dollars, one-half to
complainant. It must be clear that the foregoing laws were not passed
solely for the moral uplift of the Indian, but quite as much as a
protection to white people from drunken Indians. A similar motive must
have actuated the Southern States in enacting the laws of 1865–1868, and
it has been, at least, one incentive for the present prohibition
legislation in the South.
LABOR CONTRACTS OF NEGROES
Another common form of legislation with regard to free Negroes was that
relative to their contracts for personal service. A Florida[100] statute
of 1865 required that all contracts with persons of color should be in
writing and fully explained to them before two credible witnesses, and
that one copy of the contract should be kept by the employer and the
other by some judicial officer of the State and county wherein the
service was to be performed. Contracts for less than thirty days might
be oral. The Negro who failed to perform his contract by wilful
disobedience of orders, wanton impudence, or disrespect, failure or
refusal to do the work assigned to him, idleness, or abandonment of the
premises, was treated as a vagrant. In 1866[101] the law ceased to be a
race distinction when, by a new enactment, it was greatly limited and
made applicable to whites and blacks alike.
The law of Kentucky[102] required contracts between white persons and
Negroes to be in writing and attested by some white person. The
contracts were to be treated as entire, so that, if either party should,
without good cause, abandon the contract, the other should be held to
have performed his obligation.
Mississippi[103] enacted that all contracts for labor with freedmen,
free Negroes, or mulattoes for a longer period than one month should be
in writing, attested by two disinterested white persons in the county
where the labor was to be performed, and read to the Negro by some
officer. If the laborer quit without good cause before the expiration of
the term, he forfeited his wages for the year up to the time of
quitting. That State made it the duty of every civil officer and the
option of every other person to arrest and carry back to his employer
every Negro laborer who had left, and the person making the arrest was
entitled to receive five dollars as a fee and ten cents per mile from
the place of arrest to the place of delivery, the same to be paid by the
employer and taken out of the wages of the Negro. The Negro might appeal
to a justice of the peace who might summarily try the merits of the
case. Then, either the master or the servant might appeal to the county
court which had power to remand the deserter to the employer or to
dispose of him otherwise as it thought right and just, and its decision
was final.
In Virginia[104] all contracts for service between a white person and a
Negro for more than two months had to be in writing, signed by both
parties, acknowledged before a justice of the peace, notary public,
clerk of the county or corporation court, overseer of the poor, or two
or more credible witnesses in the county or corporation where the work
was to be done. And the justice, notary, etc., had to read and explain
the contract to the Negro.
Of all the Southern States, South Carolina[105] went much the furthest
into detail as to contracts for service. Persons of color who made
contracts for service or labor were to be known as servants, and those
with whom they contracted, as masters. Contracts for one month or more
must be in writing, attested by one white witness, and approved by the
judge of the district court or a magistrate. If the period of service
was not mentioned, it was until the twenty-fifth of December next after
making the contract. If the wages were not stipulated, they were to be
fixed by the district judge or magistrate on application by one of the
parties and notice to the other. A Negro, ten years or more of age,
having no parent living in the district and not an apprentice, might
make a valid contract for a year or less. Contracts must be presented
for approval within twenty days. Contracts for one month or more were
not binding on the servant unless written and approved. Failure to make
such a written contract was a misdemeanor punishable by a fine of from
five dollars to fifty dollars. If the servant received only board and
clothing, a written contract was unnecessary. The fee for approval
ranged between twenty-five cents for a contract of one month or less to
one dollar for a contract for one year and one dollar for each year or
part of a year in addition, half the fee to be paid by each party.
Labor on farms was minutely regulated. Hours of labor, except on
Sundays, were from sunrise to sunset, with a reasonable interval for
breakfast and dinner. Servants must “rise at the dawn in the morning,
feed, water, and care for the animals on the farm, do the usual and
needful work about the premises, prepare their meals for the day, if
required by the master, and begin the farm work or other work by
sunrise.” They must be careful of all the animals and property of their
masters, and especially of the animals and implements used by them; must
prevent them from injury by others. They were answerable for all
property lost, destroyed, or injured by their negligence, dishonesty, or
bad faith.
All lost time, not occasioned by the master, and all losses caused by
neglect of duty might be deducted from the wages of the servant. Food,
nursing, and other necessaries for the servant, while absent from work
on account of sickness or other cause, might also be deducted. Servants
must be quiet and orderly in their quarters, at their work, and on the
premises. They must extinguish their lights and fires, and retire to
rest at seasonable hours. Work at night and out-door work in bad weather
was not to be exacted except in cases of necessity.
Servants were not to be kept at home on Sundays unless to take care of
the premises or animals, for work of daily necessity, or on unusual
occasions; and then only so many as were necessary to do the work.
Sunday work must be done by them in turn, except in cases of sickness or
disability, when the work might be assigned out of order. Those away on
Sunday must be back by sunset.
Masters might give servants tasks, and might require them to rate
themselves as full hands, three-quarters, half, or one-quarter in order
to determine the task. If the servant complained of the task, the
district judge or magistrate might reduce or increase it.
Visitors of servants could not be invited or allowed by the servants to
come on the premises of the master without his express consent, nor
could servants be absent from the premises without such permission.
If the servant left his employment without good cause, he forfeited all
the wages due him. He must obey all lawful orders of the master or his
agent, and “be honest, truthful, sober, civil, and diligent in his
business.” The master might moderately correct servants under eighteen
years of age. He was not liable to pay for any additional services of a
servant, if they were necessary, except by express agreement.
The master might discharge the servant for: (1) wilful disobedience of
the lawful order of himself or his agent; (2) habitual negligence or
indolence in business; (3) drunkenness, grossly immoral or illegal
conduct; (4) want of respect and courtesy to himself, his family,
guests, or agents; (5) or for prolonged absence from the premises, or
absence on two or more occasions without permission. Or, if the master
preferred, he might report the servant to the district judge or
magistrate, who had power to inflict suitable corporal punishment or
impose a fine, and remand him to work; the fine to be deducted from the
wages, if not paid. These were the means by which the judge or
magistrate might compel the servant to perform his contract.
The master was not liable to third persons for the voluntary trespasses,
torts, and misdemeanors of his servants. Nor was he liable for any
contract of his servant unless made with the master’s authority, nor for
any acts of the servant unless done within the scope of his authority or
in the course of his employment. It was the master’s duty to protect his
servant from violence at the hands of others and to aid him in getting
redress for injuries.
For a person to deprive the master of the services of his servant,
knowing him to be such, by enticing him away, harboring him, detaining
him, beating, confining, disabling, or in any way injuring him was
punishable by a fine of from twenty dollars to two hundred dollars, and
imprisonment or hard labor for not over sixty days. In addition, the
master might recover damages for loss of such services.
The master had the right to command the servant to aid him in the
defence of his own person, family, premises, or property. He did not
have to furnish medicine or medical assistance to the servant unless he
especially agreed to do so.
The master might inform a prospective employer of the character of a
Negro who had been in his service, and this was a privileged
communication unless falsely and maliciously made. The servant could not
make a new contract without producing the discharge of his former master
or of the district judge or magistrate.
If the master was convicted of a felony or if he managed or controlled
his servants so as to make them a nuisance to the neighborhood, any
white freeholder might complain to the district judge and have the
contract annulled, and the master could not employ any colored servant
within two years.
A servant had the right to leave his master’s service for: (1) an
insufficient supply of food; (2) an unauthorized battery upon his person
or upon a member of his family, not committed in the defence of the
person, family, guest, or agent of the master; (3) invasion by the
master of the conjugal rights of the servant; (4) or failure by the
master to pay wages when due. In any one of the above cases, the servant
might collect his wages due him at the time of his departure.
If the master died, the contract—contrary to the usual rule of law—was
not terminated without the assent of the servant. His wages up to one
year took preference over other debts of the master. If the servant was
wrongfully discharged, he could collect wages for the whole period of
the contract. Upon the servant’s discharge or the expiration of his term
of service, the master must furnish him a certificate of discharge, and
upon his request, a certificate of character. If the servant forged or
altered this certificate—as by falsely claiming that he had been in a
certain previous service—he was guilty of a misdemeanor, punishable by a
fine of not over one hundred dollars. All disputes as to alleged
wrongful discharges or departures were to be heard by the district
judge, who could compel the master to take back the servant or forfeit a
penalty of a fine of twenty dollars; or compel the servant to return to
his master under pain of corporal punishment or fine.
A servant was not liable for contracts made by the express authority of
his master. Nor was he liable civilly or criminally for any act done by
the command of his master in defence of his master’s person, family,
guest, servant, premises, or property.
Negroes employed as house servants had, at “all hours of the day and
night, and on all days of the week,” to answer promptly all calls and
execute all lawful orders and commands of the master’s family. They had
to be especially civil and polite to their master, his family, and
guests, for which they in turn should “receive gentle and kind
treatment.”
The statute provided for a regular form of contract between master and
servant, which was understood to include all of the above stipulations
unless otherwise provided.
APPRENTICE LAWS
The early legislatures also made detailed apprentice laws. Although it
is scarcely open to argument that, in making such laws, they did not
have in mind primarily Negroes, still many of the statutes made no
mention of race, and, therefore, cannot be properly discussed here.
Thus, Alabama[106] had a long statute on apprentices, but the only
reference to the Negro was the rule that, if the minor be a child of a
freedman, the former owner of the child should have the preference of
apprenticing him, if a suitable person.
In Kentucky,[107] if the apprentice was white, the master must teach him
reading, writing, and common arithmetic up to and including the “Rule of
Three”; if a Negro, the master must pay at the end of the apprenticeship
fifty dollars to a girl and one hundred dollars to a boy, but if the
master should teach the apprentice to read and write, he was not bound
to pay any money. In Kentucky, also, in apprenticing Negroes, preference
was given to their former owners, if the latter were suitable persons.
Mississippi[108] had an elaborate apprentice law which related only to
freedmen, free Negroes, and mulattoes. The sheriffs, justices of the
peace, and other civil officers of the county had to report to the
probate court semiannually, in January and July, the names of all
freedmen, free Negroes, and mulattoes, under the age of eighteen, who
where orphans or whose parents were unable or unwilling to support them.
It was the duty of the court, thereupon, to order the apprenticing of
such minors, preference being given to their former masters if suitable
persons. The master had to furnish a bond payable to the State
conditioned upon his furnishing the minor with sufficient food and
clothing, treating him humanely, giving him medical attention when sick,
and, if the minor was under fifteen, teaching him or having him taught
to read and write. Males were bound till they were twenty-one; females,
till they were eighteen. The master could inflict moderate corporal
chastisement as a father or guardian might do; but in no case could he
inflict cruel or inhuman punishment.
If the apprentice ran away, the master might pursue him and bring him
before a justice of the peace who could remand him to the service of his
master. If the apprentice refused to return, he might be put into jail
until the next term of the court, when his case would be investigated.
If it was found that he left without cause, he could be punished like a
hired freedman; but if he had a good cause, the court might discharge
him and enter judgment against his master for not over one hundred
dollars to be paid to the apprentice. Anyone enticing an apprentice away
from his master, knowingly employing him, furnishing him food or
clothing, or giving or selling him liquor without the master’s consent
was guilty of a high misdemeanor.
If the master wished to get rid of the apprentice, he might go before
the probate court, which could cancel his bond, and re-apprentice the
minor. If the master died, the court in re-apprenticing would give
preference to the widow or other member of the family of the deceased.
If the master wished to move to another State and take his apprentice
with him, he had to execute a bond conditioned upon his compliance with
the apprentice laws of the State to which he was going. Any parent of a
free Negro or mulatto might apprentice his minor child, and if the age
could not be fixed by record testimony, the court fixed it.
The only race distinction made by North Carolina[109] was the law that
no white child should be bound to a colored master or mistress, and this
came in 1874—long after the period here considered.
The apprentice laws of South Carolina[110] which applied only to Negroes
were almost as elaborate as those of Mississippi. A child over two years
of age, born of a colored parent, might be bound as an apprentice to any
respectable white or colored person; if a male, till he was twenty-one;
if a female, till she was eighteen. Illegitimate children might be bound
out by their mother. If the child had no parent in the district; or if
his parents were paupers, or unable to support him, or were not teaching
him the habits of industry and honesty, or were of a notoriously bad
character or vagrants, or if either of them had been convicted of an
infamous crime, he might be apprenticed by the district judge or by a
magistrate. Males of twelve and females of ten had to sign the contract
of apprenticeship and were bound thereby; but their refusal to sign
would not affect the validity of the instrument. If the apprenticeship
was voluntary, the contract had to be under seal, signed by the master,
parent, and apprentice, attested by two credible witnesses, and approved
by the district judge or magistrate. One copy of the contract was kept
by the master, another, filed in the office of the clerk of court. The
master had to pay three dollars for the approval of the contract by the
district judge or magistrate.
Other duties devolving upon the master were to teach the apprentice the
business of husbandry or some other useful trade or business specified
in the contract; to furnish him wholesome food and suitable clothing; to
teach him habits of industry, honesty, and morality; to govern and treat
him with humanity; and if there was a colored school within convenient
distance, to send him to school as much as six weeks of each year after
he was ten years of age. The teacher of such school must have the
license of the district judge to establish it.
The master could inflict moderate chastisement, impose reasonable
restraint on the apprentice, and bring him back if he ran away. If the
master neglected his duty or subjected the apprentice to the danger of
moral contamination, the district judge might dissolve the relation of
master and apprentice. All cases of dispute between master and
apprentice were to be tried before a magistrate, who had the power to
punish the party found to be at fault. If the judge ordered the
apprentice discharged for immoderate correction or unlawful restraint,
the master might be indicted and punished by a fine of not over fifty
dollars or imprisonment of thirty days. In addition, the apprentice had
an action for damages.
After the expiration of the term of service, the apprentice was entitled
to not over sixty dollars from his master. To the apprentice also
applied the provisions for the servant under contract, which have been
considered, except that the master was bound to furnish him medical aid,
as he did not have to do in the case of the servant. And for apprentices
also, as in the case of servants, there was a regular form of contract
which was understood to contain all the above stipulations.
In Delaware,[111] not a Southern State, but much like the Southern
States in its dealings with the Negro, in its code of 1852 as amended in
1893, is this belated statute: “Any two justices of the peace, on
receiving information of any Negro or mulatto child in their county,
having no parents in this State, or who, being under the age of fifteen
years, have no parent able to maintain them, or who do not bring them up
to industry and stable employment, shall issue process to a constable
commanding him to bring such child before them at a specified time and
place, and to give notice thereof to the parents, if any, and shall
thereupon inquire into their circumstances; and if it appear to be a
proper case for binding such child, they shall proceed to bind said
child as a servant, unless they shall deem the binding, under the
circumstances, to be inexpedient.”
The constitutionality of these apprentice laws was tested as early as
1867.[112] A Negro girl, who had been a slave in Maryland and had been
freed by the Constitution of that State, November 1, 1864, was, two days
later, apprenticed by her mother to her former master. The laws
governing Negro apprentices differed from those governing white
apprentices in that the master did not obligate himself to teach the
Negro apprentice reading, writing, and arithmetic, and retained the
right to transmit the apprentice anywhere in the county. Upon a petition
for a writ of _habeas corpus_, the Federal court held that the Maryland
law resulted in practical slavery and, hence, violated the Thirteenth
Amendment and the Civil Rights Bill of 1866.
The other Southern States had apprentice laws, possibly as detailed as
the ones here considered, but they cannot be treated of here because
they applied to white and colored children alike.
VAGRANCY LAWS
The present vagrancy laws of the South have been much criticised for the
reason, as it is alleged, that they are used to get recruits for chain
gangs and convict camps, and that Negro vagrants are taken up while
white vagrants go scotfree. Be that as it may, the fault lies with the
officers, not with the law, for the law, on its face, applies to both
races equally. But the first years after the War did witness the
enactment of vagrancy laws which had special application to Negroes.
Some States passed vagrancy laws which made no race distinction, but, as
in the case of apprentices, it is beyond dispute that they were aimed
especially at the Negro.
The following persons South Carolina[113] classed as vagrants: (1) all
persons who have not some fixed and known place of abode, and some
lawful and reputable employment; (2) those who have not some visible and
known means of a fair, honest, and reputable livelihood; (3) all common
prostitutes; (4) those who are found wandering from place to place,
vending, bartering, or peddling any articles or commodities without a
license; (5) all common gamblers; (6) persons who lead idle or
disorderly lives, or keep or frequent disorderly or disreputable houses
or places; (7) those who, not having sufficient means of support, are
able to work and do not work; (8) those who (whether or not they own
lands, or are lessees or mechanics) do not provide a reasonable and
proper maintenance for themselves and families; (9) those who are
engaged in representing publicly or privately, for fee or reward,
without license, any tragedy, interlude, comedy, farce, play, or other
similar entertainment, exhibition of the circus, sleight-of-hand,
waxworks, or the like; (10) those who, for private gain, without
license, give any concert or musical entertainment, of any description;
(11) fortune tellers; (12) sturdy beggars; (13) common drunkards; (14)
those who hunt game of any description, or fish on the land of others or
frequent the premises, contrary to the will of the occupants. That the
South Carolina legislature had the Negro primarily in mind is shown by
the fact that this section is included in the act “to establish and
regulate the domestic relations of persons of color and to amend the law
in relation to paupers and vagrancy.”
Mississippi[114] had a vagrancy list almost as extensive as that above
with the addition that any freedmen, free Negroes, or mulattoes over
eighteen years of age, found on the second Monday in January, 1866, or
thereafter, with no lawful employment or business, or found unlawfully
assembling themselves together in the day or night time, and white
persons “so assembling with freedmen, free Negroes, or mulattoes ... on
terms of equality, or living in adultery or fornication with a
freedwoman, free Negro, or mulatto,” should be considered vagrants. The
white man so convicted was punishable by a fine of two hundred dollars
and imprisonment for not more than six months; the Negro, by a fine of
fifty dollars and imprisonment for not over ten days. A Negro unable to
pay his fine might be hired out for the purpose, but no such provision
applied to whites.
PAUPER LAWS
Another perplexing problem that faced the Southern legislatures was how
to meet the needs of the paupers, white and Negro. Much of the property
of the white people had been swept away entirely or had greatly
deteriorated in value as a result of the War. Few of the Negroes, to be
sure, had property to lose, but what was worse, they had lost their
right to look to the white people for sustenance. Many of them were
unable to support themselves, and the white people could not help them.
The legislatures, therefore, adopted the plan of levying a tax upon each
race for the support of its own indigents. South Carolina and
Mississippi again took the lead.
In South Carolina,[115] when a person of color was unable to earn his
support and was likely to become a public charge, the father and
grandfathers, mother and grandmothers, child and grandchildren, brother
and sister of such a person should each according to ability contribute
for the support of his or her relative. In each judicial district there
was a “Board of Relief of Indigent Persons of Color,” consisting of from
four to eight magistrates, each magistrate looking after the indigent
Negroes in his precinct. There was a fund, composed of fees paid for the
approval of contracts for service, instruments of apprenticeship,
licenses, fines, penalties, forfeitures, and wages of convicts, for the
relief of indigent Negroes. If this fund was insufficient, the board
might impose a tax of one dollar upon all male persons of color between
eighteen and fifty, and fifty cents upon each female between eighteen
and forty-five. This tax had to be paid on the day fixed or the person
rendered himself liable to pay a double tax. It was the duty of every
occupant of premises to make a report to the magistrate of any indigent
colored person thereon, and the magistrate had to make inquiry into the
condition and wants of such Negroes so reported. Moreover, the
magistrate had to make a semiannual report of the condition of such
Negroes to the chairman of the Board of Relief. The machinery for taking
care of Negro paupers was worked out in more detail than it would be
profitable to go into here.
South Carolina made also these very humane provisions: Where, upon any
farm or lands, there were, on December 21, 1865, persons of color who
were formerly the slaves of the owner, lessee, or occupant of the farm
or lands present there on November 10, 1865, and had been there six
months previous, helpless, either from old age, infancy, disease, or
other cause, and unable to maintain themselves and had no parent or
other relative able to maintain them or to provide other houses or
quarters, it was not lawful for the present or any subsequent owner,
lessee, or occupant before January 1, 1867, to evict such helpless
person of color, under penalty of a fine of fifty dollars, or
imprisonment of one month.
The law of Mississippi[116] provided that the same liabilities should
rest on Negroes to support their indigents as upon white persons to
support theirs. It levied a tax of one dollar upon every freedman, free
Negro, or mulatto between eighteen and sixty to go into the Freedmen’s
Pauper Fund. If a Negro refused to pay the tax, he might be arrested and
hired out till he had worked out the amount.
The Southern States between 1865 and 1868 passed many statutes relative
to the marital relations of Negroes and to their right to testify in
court. But these statutes are to be discussed in later chapters. It may
be said, however, in passing, that the district judge, so often referred
to in connection with the South Carolina laws, was a special officer
whose main duty was to preside over cases and disputes to which Negroes
were parties.
This chapter has been confined to the early industrial distinctions
between the races—that is, to those laws which related to the rights of
the Negro as a bread-winner. These are the distinctions brought forward
by those who believed in radical reconstruction measures in the South,
as an argument for their position. It was urged by such that, unless
Congress stepped in and took a hand, the Southern States would reënslave
the Negro: they pointed particularly to the laws of Mississippi and
South Carolina in confirmation of their contention. And there was
apparently good ground for such a view. The laws providing that colored
laborers should be called servants and their employers masters, that
they should arise at a certain time and work so many hours per day, that
they could not leave the premises or receive visitors without the
master’s consent, and the like, sounded very much like prescribing the
duties and privileges of a slave. But, on the other hand, many of the
requirements were for the protection of the Negro. Such, for instance,
were the statutes requiring contracts for service to be in writing and
the terms of them explained to the Negro; that helpless ex-slaves should
not be evicted from their old homes within two years from January 1,
1865; that Negro paupers should be cared for; and that the master must
teach his apprentice to read and write, must give him good food and
clothing, and treat him humanely.
A discussion, however, of the merits of these early laws is out of place
here. But it is only fair to remember, in reading them, that the
Southern legislatures were, in many instances, only following precedents
that had been set by the free States in dealing with free Negroes, and
that the States, either Northern or Southern, had not yet looked upon
the Negro as a citizen with the rights guaranteed him by the amended
Federal Constitution. Industrial conditions in the South were so
demoralized by the War and Emancipation that the legislatures considered
it imperative upon them to take immediate and positive steps to
establish an industrial relation between the races.
Practically all of these laws were repealed or became dead letters as
soon as the Fourteenth Amendment was passed or, at least, as soon as the
government of the Southern States went into the hands of the
Reconstructionists. But they are still interesting historically as
having furnished an argument for the radical régime of Reconstruction
which Thaddeus Stevens and his supporters inaugurated and advanced.
NOTES
Footnote 56:
Laws of Md., 1846–47, chap. 27.
Footnote 57:
Art. III, sec. 43.
Footnote 58:
Revised Stat., 1852, pp. 143–46.
Footnote 59:
Laws of Mo., 1847, pp. 103–04.
Footnote 60:
Wilson: “The Rise and Fall of the Slave Power in America,” II, p. 170.
Footnote 61:
Const., 1852, Art. XIII.
Footnote 62:
This was held to be in violation of the Federal Constitution in Smith
v. Moody, 1866, 26 Ind. 299, on the ground that the Negro had become a
citizen and, as such, entitled to migrate from one State into another.
Footnote 63:
The section of the statute which related to colonization was repealed
in 1865 because the legislature thought that those authorized to act
under the statute were not rendering any adequate service to the
State. Laws of Ind., 1865, p. 63.
Footnote 64:
Wilson: “The Rise and Fall of the Slave Power in America,” II, pp.
183–85.
Footnote 65:
Pub. Laws of Ill., 1853, p. 57.
Footnote 66:
Repealed Feb. 7, 1865. Pub. Laws of Ill., 1865, p. 105.
Footnote 67:
Laws of Ia., 1850–51, pp. 172–73.
Footnote 68:
Repealed in 1864. Laws of Ia., 1864, p. 6.
Footnote 69:
Gen. Laws of Ore., 1850–51, pp. 181–82.
Footnote 70:
Flack: “The Adoption of the Fourteenth Amendment,” 1908, John Hopkins
Press, pp. 20, _et seq._
Footnote 71:
Art. IV, sec. 19.
Footnote 72:
Art. VIII.
Footnote 73:
Laws of S. C., 1865, p. 271.
Footnote 74:
Art. II, sec. 5, par. 1.
Footnote 75:
Laws of Ky., 1863, p. 366.
Footnote 76:
Laws of S. C., 1865, p. 276.
Footnote 77:
In three places, at least, in North Carolina a Negro is not allowed to
stay over night. They are Canton (Haywood County), Mitchell, and
Madison Counties, all in the western part of the State. Negroes may
work unmolested all day, but, if they linger after nightfall, they are
reminded that it would not be healthy for them to remain during the
night. The Raleigh, N. C., _News and Observer_, Aug. 19, 1906. Also
see _The Independent_, vol. 59, p. 139, for a similar situation in
Syracuse, Ohio, and Baker: “Following the Colour Line,” pp. 71–73 and
126.
Footnote 78:
Code, 1867, sec. 1237.
Footnote 79:
Code, 1867, sec. 1233; Laws of Ala., 1865–66, p. 105.
Footnote 80:
Laws of S. C., 1865, p. 275.
Footnote 81:
_Ibid._, p. 299.
Footnote 82:
Laws of Miss., 1865, pp. 82–83.
Footnote 83:
Laws of Tenn., 1865, p. 23.
Footnote 84:
Laws of Fla., 1865, pp. 25 and 37.
Footnote 85:
Laws of Miss., 1865, pp. 165–66.
Footnote 86:
Laws of S. C., 1865, p. 275.
Footnote 87:
Laws of Ala., 1865–66, p. 55.
Footnote 88:
Laws of Ky., 1865–66, pp. 68–69.
Footnote 89:
Laws of Miss., 1865, pp. 165–66.
Footnote 90:
Laws of Ariz., 1867, p. 19; 1873, p. 78.
Footnote 91:
_Ibid._, 1883, p. 114.
Footnote 92:
Laws of Idaho, 1879, p. 31.
Footnote 93:
Laws of Dak. Ty., 1864–65, p. 192.
Footnote 94:
Laws of Neb., 1881, p. 274; 1891, p. 267.
Footnote 95:
Gen. Laws of N. M., 1880, p. 427; act 1876, chap. 28.
Footnote 96:
Laws of Utah, 1882, p. 32.
Footnote 97:
Laws of Ore., 1868, pp. 18–19.
Footnote 98:
Laws of Wash., 1867, pp. 95–96.
Footnote 99:
Revised Stat., 1903, p. 202.
Footnote 100:
Laws of Fla., 1865, pp. 32–33.
Footnote 101:
_Ibid._, 1866, p. 22.
Footnote 102:
Laws of Ky., 1865–66, p. 52.
Footnote 103:
Laws of Miss., 1865, pp. 83–84.
Footnote 104:
Laws of Va., 1865–66, p. 83; repealed in 1871—Laws of Va., 1870–71, p.
147.
Footnote 105:
Laws of S. C., 1865, pp. 295–299 and 275–76.
Footnote 106:
Laws of Ala., 1865–66, pp. 128–31.
Footnote 107:
Laws of Ky., 1865–66, pp. 49–50.
Footnote 108:
Laws of Miss., 1865, pp. 86–90. This was repealed Feb. 1, 1867—Laws of
Miss., 1866–67, pp. 443–44.
Footnote 109:
Laws of N. C., 1874–75, p. 92.
Footnote 110:
Laws of S. C., 1865, pp. 292–95.
Footnote 111:
Revised Code, 1852, as amended in 1893, p. 609.
Footnote 112:
_In re_ Turner, 1867, Fed. Case No. 14,247.
Footnote 113:
Laws of S. C., 1865, pp. 303–04.
Footnote 114:
Laws of Miss., 1865, pp. 90–93.
Footnote 115:
Laws of S. C., 1865, pp. 299–303.
Footnote 116:
Laws of Miss., 1865, pp. 92–93.