Anti-Trespassing Laws a Vestige of Racist "Black Codes" of Postbellum SouthRoundup
tags: racism, Reconstruction, black codes, Trespassing
Brian Sawers is a visiting lecturer at Georgetown University Law Center.
I always pined for the wide open, though I grew up in suburban Maryland, hemmed in by private land and no trespass signs. Even as a boy, one with his nose in books, I knew that the East had not always been so parceled into private fiefdoms. In fact, it had once been a place where anyone could roam, more open than the West is today.
It was not until years later, though, when researching a scholarly article, that I learned a clue as to why America had abandoned a centuries-long tradition and given landowners the power to close off access to so much of the country. I kept running across the same date: 1865.
As obviously significant as that date is in U.S. history, the Civil War was not a conflict between ranchers and farmers. Evidently, something else was at work. Only when I dug into the records of South Carolina did an answer begin to take shape.
Before 1865, from the colonial period onward, the only case of pure trespass in the modern sense that I could find nationwide came from that state. In 1818, and again in 1820, one South Carolina landowner had sued hunters who were ignoring his demand that they leave his land. The state high court sided with the hunters, holding that the right to enter private land was “universally exercised” and noting that merely riding over the soil caused no injury to the landowner. The opinion cited state statutes in support and went on to say that granting landowners the power to exclude hunters would provoke an insurrection—no idle words in South Carolina.
Seemingly unchastened by the outcome of the Civil War, South Carolina joined Mississippi in reenacting antebellum Black Codes in late 1865. These laws required Black people to call their employers “Master” and empowered employers to whip their workers. In addition, to leave the plantation, Black people needed a pass from their employer, who was almost always also their landlord. Union military commanders suspended both states’ Black Codes immediately, and other states took notice.
Meeting in December 1865, Louisiana’s legislature enacted an ostensibly color-blind statute that criminalized trespass. Georgia’s legislature cut down its wish list of oppressive measures from 11 new laws to just four, which included a trespass statute. By the end of 1866, new trespass statutes had been enacted across the South, all purportedly race-neutral, several very harsh. In Alabama, the penalty was three months’ hard labor. Florida allowed 39 lashes in punishment. Realizing that trespass laws had survived where Black Codes had been suppressed, the South Carolina legislature criminalized trespass late that year. By the next year, landowners were prosecuting a person who entered their land to visit a sick relative. Because most Black South Carolinians lived on the land they worked, which was owned by white South Carolinians, their employer-landlord effectively controlled whom they could see.
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