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South Carolina’s Vagrant Act

So… the South lost the Civil War, the Union marched its troops in, the slaves were freed, the freedmen and women were given equal treatment under the law, and everything everywhere was hunky dory.

Um… no.

Not by a long shot.

And nowhere was the legal system more in flux than it was in the days after the Civil War in South Carolina.

It’s that disconnect between what we all hope would have happened right after the Civil War — and what actually did happen — that had reader Jill Schralla-Stephens perplexed when she came across a letter in the Freedmen’s Bureau records for South Carolina, now digitized and available on FamilySearch.

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“Sir,” it began, “I received a communication … from … Greenwood that unless certain freedmen & children were provided for, they would be sold under the Vagrant Act. I endorsed the communication to the effect that the people would not be sold, …”1

What, Jill wanted to know, was the Vagrant Act? And why was it such a threat to the freedmen of South Carolina?

The law was one of a set of laws enacted in 1865 after the adoption by South Carolina of a new State Constitution that year. Known as the Black Code, the laws were targeted against the newly freed slaves of South Carolina, and applied to anyone who had one-eighth or more Negro ancestry.

That Constitution of 1865 did not open doors to the newly freed men and women. Election to the legislature was limited to free white men,2 and voting was limited to free while men.3

Moreover, the tone of the Constitutional convention was set by Governor B. F. Perry in his message to the delegates, on Thursday, 14 September 1865:

The question of suffrage, and who shall exercise the right of voting in South Carolina, is one of grave importance, and must be settled by you in your new Constitution. …
The radical Republican party North are looking with great interest to the action of the Southern States in reference to negro suffrage, and whilst they admit that a man should be able to read and write and have a property qualification in order to vote, yet they contend that there should be no distinction between voters on account of color. They forget that this is a white man’s government, and intended for white men only; …4

Not comforting words to those who were taking their first steps into freedom, are they? And things didn’t get any better when the legislature met that fall and winter.

The “Act to Establish and Regulate the Domestic Relations of Persons of Color, and to Amend the Law in Relation to Paupers and Vagrancy,” was adopted 21 December 1865.5 And among its provisions was the Vagrancy Act referenced in the Freedmen’s Bureau letter.

Section 96 of the statute provided that:

All persons who have not some fixed and known place of abode, and some lawful and reputable employment; those who have not some visible and known means of a fair, honest and reputable livelihood; all common prostitutes; those who are found wandering from place to place, vending, bartering or peddling any articles or commodities, without a license from the District Judge, or other proper authority ; all common gamblers; persons who lead idle or disorderly lives, or keep or frequent disorderly or disreputable houses or places ; those who, not having sufficient means of support, are able to work and do not work ; 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; 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, wax works, or the like ; those who, for private gain, without license, give any concert or musical entertainment, of any description; fortune-tellers; sturdy beggars; common drunkards; 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, shall be deemed vagrants, and be liable to the punishment hereinafter prescribed.6

Any person of color known or believed to be a vagrant could be arrested and tried by a jury of freeholders — meaning white property owners.7 And if convicted, the person could be sentenced to hard labor, but “may, by order of the District Judge or Magistrate … be hired for such wages as can be obtained for his services to any owner or lessee of a farm … or be hired for the same labor on the streets, public roads or public buildings.”8

And that’s why freedmen and women were afraid in South Carolina: they could be arrested as vagrants, tried before all white juries… and essentially sold back into involuntary labor.

Now the immediate threat posed by this Constitution and this law was ameliorated: the federal government refused to accept the Constitution of 1865, and the laws enacted in reliance on it didn’t go into wide effect:

Radical Republicans, many of them African Americans, took control of the legislature and created the Constitution of 1868. This constitution established local governments, created a Declaration of Rights giving equal treatment to all races, mandated statewide public education, established a welfare program for the poor, elderly and disabled, and removed the property ownership-voting requirement. These new provisions were a radical departure from previous constitutions, and though they were in the public’s best interest, the programs established in the Constitution of 1868 were met with much resistance from those who formerly had been in places of power. These actions on the part of the Radical Republicans only seemed to spur the old establishment into action, and by 1876 they had regrouped enough to elect Wade Hampton III as governor of South Carolina. By this time, many whites had brought back the old order and eventually blacks were disenfranchised and stripped of their rights once again.9

But without understanding those unsettled — and unsettling — laws of South Carolina in the days after the Civil War, we can’t understand the records — or the fears — of that day.


SOURCES

  1. Letter, Capt. C.R. Becker, Freedmen’s Bureau, Abbeville, SC, to Brevet Maj. Wm. Stone, Freedmen’s Bureau, Anderson Court House, SC, 20 August 1866; digital images, “South Carolina, Freedmen’s Bureau Field Office Records, 1865-1872: Abbeville (agent),” FamilySearch (https://familysearch.org : accessed 25 May 2015), citing NARA microfilm publication M1910, roll 32.
  2. Article I, §§ 13-14, Constitution of the State of South Carolina … 1865 (Columbia, S.C. : State Printer, 1866), 6; digital images, Google Books (http://books.google.com : accessed 25 May 2015).
  3. Ibid., Article IV, at 11.
  4. Message No. 1, B. F. Perry to the Members of the State Convention, in Journal of the Convention of … South Carolina, … 1865 (Columbia, S.C. : J. A. Selby, 1865), 14; digital images, Internet Archive (http://www.archive.org : accessed 25 May 2015) (emphasis added).
  5. “An Act to Establish and Regulate the Domestic Relations of Persons of Color, and to Amend the Law in Relation to Paupers and Vagrancy,” Act No. 4733, in Statutes at Large of South Carolina, Volume 13 (Columbia, S.C. : Republican Printing Co., 1875), 269; digital images, Internet Archive (http://www.archive.org : accessed 25 May 2015).
  6. Ibid., §96.
  7. Ibid., §97.
  8. Ibid., §98.
  9. ‘An Act to Establish and Regulate the Domestic Relations of Persons of Color…’ or the Black Codes of South Carolina, December 1865,” Teaching American History in South Carolina (http://www.teachingushistory.org/ : accessed 25 May 2015).
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