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Race Relations after the Civil War

The Civil War freed one sixth of the U.S. population from bondage. A small number of free blacks had lived in both the North and the South before the war, and they were everywhere denied by law full social and political equality. Only Massachusetts permitted them both to serve on juries and to give testimony. Lemuel Shaw, in Roberts v. City of Boston ( 1849), summarized their condition in an opinion dealing with the authority of the school board of Boston to segregate children by race. He conceded that "all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law," but he also found that the legislature through its police powers could arbitrarily give or withhold rights on the basis of race, because "those rights must depend on laws adapted to their respective relations and conditions." 41

Union victory in the Civil War presented an unparalleled opportunity to redefine the legal basis of race relations. The greatly enlarged free black population was a source of potential political power for Republicans, a means of realizing the moralistic objectives of antislavery advocates, and the basis on which to adjust the scope of federalism. By establishing the ascendancy of the Union, the war opened possibilities for the exercise of federal power over the law of personal status, an area previously the exclusive legal domain of the states.

The most striking early example of Republican efforts to secure protection of the black minority in the South was the Freedmen's Bureau. Created by Congress in 1865, it did not receive full powers until the following year and its effective operation ceased in 1868. Congress endowed the bureau with "control of all subjects relating to refugees and freedmen in the rebel states." 42 The bureau's director, General Oliver O. Howard, construed this statute to authorize local bureau agents working in southern localities to try minor civil and criminal cases. The purpose of the bureau was to "set the law in motion." 43 The bureau's agents attempted to create enough familiarity among blacks with the law that southern whites would continue with a program of equal justice after the federal military presence had left. These bureau agents adjudicated hundreds of thousands of complaints each year, most of them involving common law matters of contract, tort, and property that were traditionally the preserve of state courts. Bureau courts became another layer--a federal layer--of legal authority, and their decisions usually went in such a way as to favor blacks.

Republicans turned to other devices to press the authority of the national government on the South. For example, military courts in the days immediately following the end of the war contributed significantly to the restoration of law and order. Congress also expanded the jurisdiction of the federal courts, making it easier for blacks to remove cases from often hostile state courts, and enlarged the number of federal courts in the region, making federal judicial power more readily available.



 

Black Codes

These measures were inadequate to the task of protecting blacks under the law. Southern states almost immediately passed Black Codes to curtail the newly won liberty of freedmen, while white-supremacist nightriders sought to intimidate blacks through violence. The codes recognized that blacks were human beings and free persons. Blacks could buy, sell, own, and bequeath real and personal property. They could also

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make contracts (including marriage contracts with other blacks, but not whites), sue and be sued, and testify in courts in cases in which blacks were a party.

The codes, on the other hand, were instruments of racial control that, while acknowledging the freedmen's new status, imposed a kind of quasi slavery. For example, blacks were forbidden from pursuing certain occupations (e.g., skilled artisans, physicians, and merchants) and were restricted in the areas in which they could live. They could not own firearms, and--in a nod to the social etiquette of slavery days-- they were forbidden to direct insulting words at white people. Blacks could not serve on juries, vote, or hold office. They were, in sum, political ciphers and social pariahs.

Several northern states passed similar laws at the same time. These states also strengthened their rules against black migration in an effort to prevent race mixing and to preserve free white-labor markets. Northern political leaders, including conservative members of the Republican party, clung to a strong states' rights policy, believing that the legal basis of social policy should be formed locally. Yet, in the period immediately following the war, many of these same northerners believed that southerners deserved to be punished, and that the Black Codes embodied an unacceptable reassertion of a political and social system supposedly destroyed by the war.

 


Date: 2015-01-29; view: 1054


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