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.
Almost a century later, two college students arrested at a lunch counter in Columbia, South Carolina, during a civil-rights sit-in were charged with violating that same 1866 statute. In a divided decision , the U.S. Supreme Court quashed their convictions. The opinion did not acknowledge the law's genesis, despite citing those early cases from South Carolina, including that criminal conviction for visiting a sick relative.
The motivation for the criminalization of trespassing was not simply racial animus, though that was inseparable from it. Plantation owners were former slaveowners, but their chief concern was economic rather than social. Plantation owners in the American South had seen what had happened when the British empire ended slavery three decades earlier. Across the Caribbean, islands dominated by sugar plantations saw Black people withdraw to the hills to feed themselves; a collapse of plantation agriculture was averted only by the expensive importation of new workers from India and China. American plantation owners knew that Black people in the South could do the same.
To cut costs, almost all slaveowners had assigned each enslaved family a garden with which to supplement their limited rations of cornmeal and fatback. Most plantations still had areas of uncleared forest, so foraging, fishing, and hunting added wild food to enslaved people's diet. Some of the garden produce and wild food was sold door-to-door to white households in town, along with handicrafts like baskets. After Emancipation, many Black people could have fed themselves from the open countryside, eating some of what they caught or gathered and selling the rest. Today, it might be hard to imagine people living off the land like that, but there were fewer than 10 million people—6 million white, 4 million Black—in the entire South after the Civil War.
During Reconstruction, plantation owners had no alternative to the labor of Black people; not enough whites were available or willing to work in the fields. As a Barlow County, Georgia, resident named S. W. Leland told the state agricultural society on August 15, 1883: "We needed them [Black southerners] as slaves, we need them as freedmen." The planters identified "labor control" as their greatest challenge, one that underpinned all other conflicts in the postwar period.
Of course, the planters could have accepted the new reality and paid market wages—a few did, in fact, and they had no trouble recruiting workers. But most planters looked to state governments to help them coerce Black people into working under bad conditions for low wages. This was where criminalizing trespass came in. After Emancipation, every southern state enacted some type of law restricting access, outlawing hunting and fishing or grazing livestock on private land, in addition to the labor laws and vagrancy statutes that allowed courts to sentence to hard labor "stubborn servants" and workers who did not accept customary wages.
The discussions of this new strategy took place entirely out in the open. Landowners were not to rent land to Black farmers, so that the "majority of the white citizens may control labor," in the words of a Mississippi Klan member. Writing to a farm journal, one planter listed trespass, dog taxes, and vagrancy statutes as "Needed Laws." Another planter asked for "strict observance of the Trespass laws … [to] keep the negroes more confined." Planters bemoaned "good fruit years" when workers became scarce and lamented the "altered system" that had "stripped" them of their labor. If planters could cut off access to wild food, the threat of starvation would make workers more tractable. The first game warden of South Carolina argued for hunting licenses to restrict the "negro, who is continually hunting at the very season of the year when he should be between the plow handles."
One obstacle was in the landowners' way. Most white people were themselves not big landowners, and therefore the bargaining power of Black workers did not affect them, but limits on their traditional rights to hunt and fish on open land would. Planters proposed and state legislatures adopted a work-around to statewide laws where possible: Many restrictive laws were enacted county by county, singling out majority-Black ones. In some counties, the new laws had to be crafted even more precisely to limit their application to parts of the county with more Black residents. If the new laws applied in areas with white residents, advocates were vocal in calling on all landowners to allow their white neighbors to continue hunting and fishing without interference.
Eventually, trespass laws that had originated in the South traveled north—facilitated by a particular business model that developed after the Civil War. Southern plantations organized hunting trips for rich northerners, carefully orchestrated to evoke a picturesque Old South. The human-safari aspect was a central selling point to visiting Yankees: The "best" hunting guides, these tours held, were "genuine" Black men old enough to have lived as "faithful" slaves. During the hunting trip when Teddy Roosevelt famously refused to shoot a black bear (giving rise to the "teddy bear"), the organizers made sure that his guide was Holt Collier, a Black man well known both for his hunting prowess and for having served with the Confederate Army.
Northern states adopted these laws because the notion of a monopoly over the countryside appealed to landowners, and large landowners tended to have influence in state legislatures. Although labor control was a much smaller issue in the North, employers were nevertheless happy to deprive their workers of distracting pastimes—as a report to the Massachusetts legislature concluded : "The sooner our wild animals are extinct, the better."
Over a span of decades, northern landowners gradually succeeded in privatizing the outdoors, though state legislatures were obliged to proceed in small steps, targeting the least powerful and most marginal. Pennsylvania, for example, enacted in 1909 a law specifically designed to stop immigrants from hunting. The U.S. Supreme Court upheld the law, citing Pennsylvania's "local experience," which allowed it to conclude that immigrants were the "peculiar source of the evil that it desired to prevent." Emboldened by the decision, Pennsylvania banned immigrants from owning dogs in 1915.
Today, more than 150 years after the first wave of trespass laws, the landowners' victory is not complete. The states and the federal government have set aside land for outdoor pursuits. In parts of the country, the law permits exclusion but local custom does not. Several states preserve remnants of public access—for example, to bodies of water—and some 28 states require landowners to post a warning or give personal notice before entering the land can be considered trespass. Even the requirement to post is a vestigial victory for public access, because the law could have required the wanderer to discover first what land was private and seek permission. Often enough, a no trespass sign may be more aspirational on the part of the landowner than it is enforceable.
Despite what these signs would have us believe, an open countryside is not un-American. We had one set of laws for centuries and now we have a contrary set, which originated in southern landowners' efforts to compensate themselves for the abolition of slavery. Given that history, this much is certain: Any claim that private property owners have a natural right to restrict access is false. There was a time before we closed the countryside. There can be a time when we reopen it.
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