Black codes

“ To be sure, there is much emphasis in the debates on the evils of the Black Codes. But there are also passages that indicate that Congress intended to reach private discrimination that posed an equal threat to the rights of the freedmen. See id., at 429-437, 88 S.Ct., at 2197-2202. Senator Trumbull, for example, promised to introduce a bill aimed not only at "local legislation," but also at any "prevailing public sentiment" that blacks in the South "should continue to be oppressed and in fact deprived of their freedom." ”

“ Negro suffrage was almost nullified, and that, too, before the legislation of the last decade.
But, in asserting their complete political superiority, the whites also recognized a large responsibility for the race they controlled. A degree of civil rights was secured to them, short of a perfect equality with the whites, but far beyond the status intended by the "black codes" of 1865-6. The fundamental rights, of liberty to dispose of their labor and earnings in their own way, and protection of person and property by the law and the courts, were substantially [Pg 373] secured. ”

“ Maryland, Virginia, and Missouri adopt immediate and unconditional emancipation. The partially re-organized rebel States of Virginia and Tennessee, Arkansas and Louisiana, accept and adopt the unrestricted abolition of slavery. Illinois and other States hasten to blot from their statute-books their dishonoring black codes.284 The Attorney-General officially pronounces the negro a citizen of the United States. The negro, who had no status in the Supreme Court, is admitted by the Chief Justice to practice as an attorney before that august tribunal. ”

“ By then, the constitutions of 35 of the 37 States–accounting for over 90% of the U. S. population–expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008) .
Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. ”

“ In fact, the statement, made in the course of a debate on a bill (S. 60) to enlarge the powers of the Freedmen's Bureau, related solely to Black Laws that had been enacted in some of the Southern States. Trumbull attacked the 'slave codes' which 'prevented the colored man going from home,' and he urged that Congress nullify all laws which would not permit the colored man 'to go where he pleases.' Cong. ”

“ A decade later the development of a black code was begun by an enactment declaring that any negro, mulatto, or Indian servant wandering outside his proper town without a pass would be accounted a runaway and might be seized by any person and carried before a magistrate for return to his master. ”

“ The black code of Alabama provides that if a negro who has contracted to labor fails to do so, he shall be punished with damages; and if he runs away he shall be punished as a vagrant, which probably means that he shall be sold to the highest bidder for a term of years; and that any person who entices him to leave his master, as by the offer of better wages, shall be guilty of a misdemeanor, and may be sent to jail for six months; and further, that these regulations include all persons of negro blood to the third generation, though one parent in each generation shall be pure white ”

“ If there is ground for condemnation in the above, the South must be condemned for thinking better of their conquerors than they deserved. The South Carolina Act, above alluded to, excepted from the provisions of what has been called the “Black Code”—“every person who may have of Caucasian blood, seven-eighths or more,” who it provided “shall be deemed a white person,” [196] declaring, however, that: “all other free Negroes, mulattoes and mestizos, all freed women and all descendants through either sex of any of these, except as above, shall be known as persons of color.” ”

“ No law has been passed under the commonwealth to ameliorate the black code of the colony of Virginia; on the contrary, new laws have been passed, adding to the oppression of the unfortunate negroes, and which have not only abridged the rights of humanity, but of the citizen. Such is the character of the law which restricts and to a great degree prohibits the master from manumitting his slave. ”

“ Undaunted by this, however, the enemy of the free Negroes won a victory in another quarter in enacting a law that no black or mulatto person or Indian should be permitted to give evidence in any action to which a white person was a party. The leaders of the Negroes held another convention in 1856 to protest against this law. Another bill providing for the prohibition of the immigration of free persons of color into the State was introduced in 1858 and after much debate put through both houses, but it never became a law. The black code, of course, was abrogated after the Civil War. ”

“ When, now, the real Negro criminal appeared, and instead of petty stealing and vagrancy we began to have highway robbery, burglary, murder, and rape, there was a curious effect on both sides the color-line: the Negroes refused to believe the evidence of white witnesses or the fairness of white juries, so that the greatest deterrent to crime, the public opinion of one's own social caste, was lost, and the criminal was looked, upon as crucified rather than hanged. ”

“ There was a law in force in their favor called the Code Noir or the Black Code, which ordained that they should receive no more than thirty lashes for any offence, that they should not work on Sundays, that they should eat meat once a week, and have a new shirt every year ”

“ In none of those States has the black man a law to protect him in his rights, either of person or property. He can sue in a court of justice in my State, but he can command no testimony in his prosecution or defense unless the witness be a white man. We have one code for the white man, another for the black. Is this justice? Where is your court of justice in any Southern State where the black man can secure protection? Again there is no response."
Mr. Grinnell, of Iowa, a member of the committee that had reported this bill, took the floor in its favor. ”

“ For such dealing with criminals, white or black, the South had no machinery, no adequate jails or reformatories; its police system was arranged to deal with blacks alone, and tacitly assumed that every white man was ipso facto a member of that police. Thus grew up a double system of justice, which erred on the white side by undue leniency and the practical immunity of red-handed criminals, and erred on the black side by undue severity, injustice, and lack of discrimination. ”

“ The French have always been noted for making the kindest slave-owners. Imitating the conduct of many of the old nobility of France in their intercourse with the peasantry, a number of the planters of St. Domingo were attentive to the wants and feelings of their negro dependents — encouraging their sports, taking care of them in sickness, and cherishing them in old age. In the year 1685, likewise, Louis XIV. had published a code noir, or black code, containing a number of regulations for the humane treatment of the negroes in the colonies. ”

“ The laws are made by men who have little interest in him; they are executed by men who have absolutely no motive for treating the black people with courtesy or consideration; and, finally, the accused law-breaker is tried, not by his peers, but too often by men who would rather punish ten innocent Negroes than let one guilty one escape.
I should be the last one to deny the patent weaknesses and shortcomings of the Negro people; I should be the last to withhold sympathy from the white South in its efforts to solve its intricate social problems. ”

“ The legislative, executive, and judicial authorities are all in their hands—the preservation, propagation, and perpetuation of the black code of slavery—every law of the legislature becomes a link in the chain of the slave; every executive act a rivet to his hapless fate ”

“ The very corner-stone of Southern legislation and jurisprudence for more than a hundred years was based upon this idea: the negro can have no rights, and can testify as to no rights or wrongs, as against a white man. So that the master might take his slave with him when he committed murder or did any other act in contravention of law or right, and that slave was like the mute eunuch of the seraglio, silent and voiceless before the law. ”

“ It was, therefore, enacted that no Negro or mulatto should remain there permanently, unless he could furnish a certificate of freedom issued by some court, that all Negroes in that commonwealth should be registered before the following June, and that no man should employ a Negro who failed to comply with these conditions. Should one be detected in hiring, harboring or hindering the capture of a fugitive black, he was liable to a fine of $50 and his master could recover pay for the service of his slave to the amount of fifty cents a day. ”

“ The words 'under color of law' were inserted as words of limitation, and not for the purpose of punishing persons who would not have been subject to punishment under the act if they had been omitted. If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have any thing to do with his case, because he has adequate remedies in the State courts ”

“ The legislation thus proposed invades the judicial power of the State. It says to every State court or judge, If you decide that this act is unconstitutional; if you refuse, under the prohibition of a State law, to allow a negro to testify; if you hold that over such a subject-matter the State law is paramount, and 'under color' of a State law refuse the exercise of the right to the negro, your error of judgment, however conscientious, shall subject you to fine and imprisonment. ”

“ Perier recalls articles in the Black Code of 1724, where explicit directions are given for the disposition of the children of free blacks. In the regulations of police under the governorship of the Marquis of Vandreuil, 1750, there is an article regulating the attitude of free Negroes and Negresses toward slaves. Here is the very beginning of that aristocracy of freedom so fiercely and jealously guarded until this day, a free person of color being set as far above his slave fellows as the white man sets himself above the person of color. ”

“ Ferguson's Racially Disparate Practices Violate Federal Law This data shows that police and court practices impose a disparate impact on black individuals that itself violates the law. Title VI and the Safe Streets Act prohibit law enforcement agencies that receive federal financial assistance, such as FPD, from engaging in law enforcement activities that have an unnecessary disparate impact based on race, color, or national origin. ”

“ In the most cultured sections and cities of the South the Negroes are a segregated servile caste, with restricted rights and privileges. Before the courts, both in law and custom, they stand on a different and peculiar basis. Taxation without representation is the rule of their political life. And the result of all this is, and in nature must have been, lawlessness and crime. That is the large legacy of the Freedmen’s Bureau, the work it did not do because it could not. ”

“ Moreover, the political status of the Negro in the South is closely connected with the question of Negro crime. There can be no doubt that crime among Negroes has sensibly increased in the last thirty years, and that there has appeared in the slums of great cities a distinct criminal class among the blacks. In explaining this unfortunate development, we must note two things: (1) that the inevitable result of Emancipation was to increase crime and criminals, and (2) that the police system of the South was primarily designed to control slaves. ”

“ It is only when a State omits to carry into effect the provisions of the civil rights act, and to secure the citizens in their rights, that the provisions of the fifth section of the fourteenth amendment would be called into operation, which is, 'that Congress shall enforce by appropriate legislation the provisions of this article.'
There is no legislation that could reach a State to prevent its passing a law. It can only reach the individual citizens of the State in the enforcement of law. You have, therefore, in any appropriate legislation, to act on the citizen, not on the State. ”

“ This amendment was supported by the attorney-general and solicitor-general, both of whom, however, frankly admitted the vices of the system of law under which the proceedings in question had taken place. It was impossible, said the attorney-general, to look at the case, arising as it did out of the vice of the system, without wishing for a change. If the white man upon his trial had an opportunity afforded him of knowing the charge, and thereby preparing his defence, why should not the black slave have the same advantage? ”

“ The police code of the neighboring parish of East Feliciana in 1859 went on further to prescribe trials and penalties for slaves insulting or abusing white persons, to restrict their carrying of guns, and their assemblage, to forbid all slaves but wagoners to keep dogs, to restrict citizens in their trading with slaves, to require the seizure of self-styled free negroes not possessing certificates, and to prescribe that all negroes or mulattoes found on the railroad without written permits be deemed runaway slaves and dealt with as the law regarding such directed. ”