CHAPTER IV

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.