Blue Laws and Black Codes

Conflict, Courts, and Change in Twentieth-Century Virginia

Peter Wallenstein

• Publisher: University of Virginia Press
• Year: 2013
• Print ISBN: 9780813922607
• eBook ISBN: 9780813924878
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Women were once excluded everywhere from the legal profession, but by the 1990s the Virginia Supreme Court had three women among its seven justices. This is just one example of how law in Virginia has been transformed over the past century, as it has across the South and throughout the nation.

In Blue Laws and Black Codes, Peter Wallenstein shows that laws were often changed not through legislative action or constitutional amendment but by citizens taking cases to state and federal courtrooms. Due largely to court rulings, for example, stores in Virginia are no longer required by "blue laws" to close on Sundays.

Particularly notable was the abolition of segregation laws, modified versions of southern states' "black codes" dating back to the era of slavery and the first years after emancipation. Virginia's long road to racial equality under the law included the efforts of black civil rights lawyers to end racial discrimination in the public schools, the 1960 Richmond sit-ins, a case against segregated courtrooms, and a court challenge to a law that could imprison or exile an interracial couple for their marriage.

While emphasizing a single state, Blue Laws and Black Codes is framed in regional and national contexts. Regarding blue laws, Virginia resembled most American states. Regarding racial policy, Virginia was distinctly southern. Wallenstein shows how people pushed for changes in the laws under which they live, love, work, vote, study, and shop—in Virginia, the South, and the nation.

1

The Case of the Laborer from Louisa

Conscripts, Convicts, and Public Roads, 1890s–1920s

REVEREND LlTTLEBERRY JAMES HALEY (1832–1917) WROTE IN mid-January 1882 that he had stayed at home in Louisa County on both Wednesday and Thursday that week: “The roads are too awfully muddy to travel.”¹ He is one of three central Virginians whose stories illustrate how people traveled before the twentieth century and how the coming of the horseless carriage and hard-surface roads transformed the traditional patterns of life and work in the region. These three men involved themselves in three major developments in the law between the 1890s and the 1910s that led to Virginia’s highway system: a court case in the 1890s; state legislation in 1906 following a formal amendment to the state constitution; and federal legislation in 1916.

Pastor Haley’s Muddy Sundays

L. J. Haley spent fifty years, beginning in the late 1850s, as a Baptist preacher in various churches, mostly in central Virginia’s Louisa area, where his eight children grew up. To fulfill his obligations at South Anna, Trinity, Hopeful, and elsewhere, he knew that he could not count on good weather or good roads, and he could not always wait for the weather, or the roads, to get better. In addition to preaching Sunday sermons, he had to visit the faithful and officiate at baptisms, weddings, and funerals. Moreover, as county superintendent of education for a while, he had to go to Louisa Court House from time to time to take care of school business.

Writing of one of his churches in February 1888, he noted, “I go to Hopeful. What a ride thro the mud!” Two weeks later he found the “roads utterly desperate” and “traveling almost impossible except on horseback and that bad enough.” The next February proved no better. He went to Hopeful on a “very rainy day”; his riding horse, Old Fred, got him home again that night, but the reverend found it “a very disagreeable ride,” with “mud and slush everywhere.”

When it came to longer trips, trains sometimes proved Pastor Haley’s salvation. One time he reported contentedly: “I go to Richmond with my little boys, Littleberry and Bunny, and they see the city. A Big Thing with the little boys. Go down on an excursion train, one dollar round trip. Boys half price. Spend the day in Richmond.” On a spring day in 1882, he performed a marriage in the morning—“$5.00”—and then took a train from Fredericks Hall to Warrenton for a meeting that evening of the Baptist General Association.

The years passed, and Haley’s reports about travel by horsepower during the winter months remained as bleak as the weather. In 1908 a January thaw came to Louisa. On the twenty-fourth, he reported that he had found a “good congregation” when he got to Little River, but “the roads are very bad, as muddy as I ever saw them.”

During the first third of the twentieth century, nevertheless, transportation—in Louisa and Albemarle Counties and across the nation—embarked on as great a change as the railroad had brought in the middle third of the nineteenth century. In the year 1893, two brothers, bicycle mechanics in Springfield, Massachusetts, developed the first successful American automobile powered by gasoline, and by 1896 they were producing and marketing cars at the rate of one a month. Also in 1893, Congress established the Office of Public Road Inquiry in the Department of Agriculture.² Thus began both the age of automobiles in America and the era of the Good Roads movement. Both would find their way to central Virginia and begin their transformation of life there before the 1920s.

Like Pastor Haley, two more people, one each from Louisa and Albemarle, exhibited Virginia’s system of transportation in their daily lives. And each took actions that worked directly to facilitate the changes.

Judge Duke’s Sunny Everydays

Richard Thomas Walker Duke Jr. (1853–1926) lived on Park Street in Charlottesville, where he and his wife Edith raised five children. A lawyer, he served for a time beginning in 1888 as judge on the city’s court. Judge Duke, like Pastor Haley, kept a diary, commented on the weather, and traveled a lot.³

Duke had a sunnier disposition than did Haley. His diary for the year 1892, for example, is sprinkled with entries like that for February 13, “beautiful aurora at night,” or that for October 5, “an exquisitely beautiful moonlight night.” Yet his capacity for enjoyment does not fully explain his failure, as a rule, to connect his descriptions of the weather with his accounts of his travels. Rather, much of Duke’s travel, including his trips to New York City and West Virginia, was by train, so the weather had little influence on his plans or his outlook. Perhaps it was, as he wrote in January, “raining all day,” but he “left for Richmond … on first train.” A week or so later, on a day that was “warmer and clear,” he “went to Orange at 11 o’clock, on C & O,” and returned by train at 1:30. Duke often specified that he had traveled on the “F.F.V.,” the Chesapeake and Ohio Railroad’s name for the plush Pullman cars on the “Famous” or “Fast Flying Virginian,” which began its runs in 1889 and ran north directly to Washington, Philadelphia, and New York.⁴ Passenger trains facilitated Duke’s constant travels and helped sustain his sunny disposition. He concluded each trip away from his home and family with a sigh of relief and gratitude, “All well thank God.”

One might summarize Judge Duke’s experience with transportation by observing that like Pastor Haley, he found travel by train preferable, even essential, when going much beyond the county boundaries. Duke happened to make such trips more often than Haley, and he tended to make much longer trips. As for local travel, one gathers from the two men’s diaries that local roads in the Charlottesville area were superior to those in Louisa County. The larger towns in Virginia, as elsewhere in America, could take advantage of a bigger tax base and a denser population to build and maintain better roads than could small-town and rural America. Charlottesville did so.⁵

Judge Duke’s diaries for 1892 supply many glimpses of his life in his hometown and its immediate surroundings. There, he was almost always moving with the power of a single horse. Again and again on Sunday afternoons, he wrote about local trips with his wife, Edith, or their children: Mary, who turned seven that year, Walker, who turned five, and Jack, four. At the end of January, he noted, “Edith & I drove to Sunny Side,” the home of his aging father just to the west of town. Judge Duke had what he called “a sweet day” in October when he “rode to Sunny Side on Queen, Walker accompanying on his donkey. Edith & children coming on later.” At Sunny Side the donkey “started off with Walker & I shouted ‘Where are you going.’” Said Walker: “‘I ain’t going anywhere. It’s the donkey.’”

Some travel on horse or in carriage, of course, was to other places, for other purposes, or without Edith or the children. One Sunday in January he went “after dinner to Sunny Side on horseback. A cold ride, but I rather enjoyed it.” In May: “drove at night to the Univ[ersity]” regarding his Scottsville friend “Tom Martin’s candidacy for the U S Senate.” In June: “Edith & I drove to Edge Hill & took tea in the afternoon. Lovely afternoon.” In July: “drove” to Rio Station, where he spoke to a group of Sunday school children. And in October: “Edith and I drove” to a church near Whitehall, “where I spoke to quite a large crowd of men women & children” and enjoyed a picnic. “Then by Pace’s Old Mill to Ivy Depot. … A delightful day.”

Everyman’s Working the Roads

As late as the 1890s, in Virginia as in perhaps every state in the Union, an American adaptation of the corvée—a French term for a universal system—supplied the labor that constructed and maintained many, even most, of the public roads in rural areas. The system called for a tax, not of cash but of labor, a few days of work without compensation each year. Variously known as “statute labor” or “road duty,” it provided a means whereby local governments might avoid the levy of cash taxes by securing labor without cash payments. It had been under attack for many years.⁶

By the years around 1900, states began to take legislative action against the labor tax. Vermont, for example, outlawed the labor tax in 1892, and the last of the states—in the South as well as the North—had done so by the early 1930s. But in some states, legislatures proved too slow for one citizen or another, who called on the courts to rule whether public authorities had the right to demand that free men work the roads. Until either legislative repeal or judicial invalidation, Americans had to appear when ordered to put in their quota of labor, or at least of time. Alternatively, as a rule, they might send a substitute or pay a cash tax.

As Pastor Haley could surely have testified, in Louisa County, Virginia, as elsewhere, authorities had little success in their struggle with the perennial problem of bad roads. In June 1890 the board of supervisors noted “the heavy complaints made of the bad condition of the public roads and the many difficulties in the way of securing effective Road work with the proper economy.” A year later the board, writing that it was “fully aware of [the] present bad condition of the public roads,” promised to continue its efforts “to do the best that the County finances will allow,” but it pointed out that the county had more than 500 miles of roads to look after and warned that “our only hope of good roads is in a much larger outlay of money.”⁷

Although authorities continued to make use of the labor tax, they recognized that a better way must be found. One such way might be convict labor, which had been tried in other southern states and other Virginia counties. In a split decision in 1889, the board rejected a resolution to adopt “the convict system,” but it arranged the next year for the use of thirty-seven convicts for two months’ work if the costs could be kept under $1,000. Some leading Louisans, like their counterparts elsewhere, favored hired labor over either the labor tax or convict workers. Regardless of which system might be adopted, the board called for putting the roads “under State Control, with hired labor or convicts and the Superintendance of a practical road engineer.” Louisa County’s supervisors, when they resorted to the labor tax, did not view it as a particularly good system, only as the best available.

That was the situation in Virginia in June 1892, when William F. “Pete” Proffitt received his orders to work the roads of Cuckoo District in Louisa County. Under an act of the state legislature, Louisa authorities could call him and all other able-bodied men between the ages of sixteen and sixty out to work the roads for two days each year.⁸ Proffitt, however, declined to appear for work. As his daughter put it many years later, “Young men had to go out and work on the road,” and “he just contested it.”⁹

The law provided for such a contingency. The road overseer for Cuckoo District, J. C. Thacker, assessed him $1.00 for his failure to work, an amount to be paid in cash or to be obtained by seizing property of that value from him. Proffitt declined to pay the fine, and he owned nothing worth a dollar. It was time to force him to work the fine off, as well as costs, at $.75 for each day’s work. The costs were set at $2.40.¹⁰

The Louisa County Court ruled that the fine was legal and ordered Proffitt to pay it or work it off as the law provided. Again, he balked. After Deputy Sheriff Frank H. Anderson arrested him, in the first week of November, Proffitt applied to the Virginia Supreme Court of Appeals for a writ of habeas corpus for false imprisonment. In view of Proffitt’s claim that the Louisa road law violated the Virginia constitution, the state’s high court agreed to hear the case.

Willis W. Proffitt, William F. Proffitt’s father, was one of the leading farmers in the Pendleton area of Louisa County. Proffitt and his wife, Bettie, owned their own farm, free of mortgage. On it they raised their six children, with William the next youngest. Various kin (including Bettie’s twin sister, Nancy) lived on the family homestead, which had been in Bettie’s family since well before the Civil War. W. W. Proffitt and the road overseer, J. C. Thacker, were both proprietors of small gold mines. As for Pete Proffitt, he was twenty-two years old and either working the local mines or living at home as a farm laborer at the time he refused to work the roads in Cuckoo District.¹¹

Pete Proffitt’s Test Case

Proffitt’s case was in fact designed as a test case. His leading attorney, William E. Bibb, was a principal in organizing the effort to test the road laws in the courts. Letters to him offer tantalizing glimpses of the origins of the test case. In May 1892 W. W. Proffitt wrote Bibb from nearby Pendleton: “I submitted the proposition of ours [of two days ago] to Mr. Thacker & my son. They would not agree to it. Thacker says he will make no move whatever until he is indemnified, now if [Louisa County Court] Judge [Frederick W.] Sims wants a case according to his so called law,” and if he met their conditions, “we are ready.”¹²

As the test unfolded, some participants grew more anxious about their roles in thwarting the law. At the same time, some of them voiced their opinions of Virginia’s laws governing labor on the roads. In June, L. B. Glass wrote Bibb from nearby Mineral City, “I take the [occasion] to write you I could not get thare to see you personally in Regard to Working the Road.” He and “Mr William C Harper,” who worked “at the copper mines together,” “want to know [what] they … intend to do. I see there are new orders issued to the … overseers of Road[.] I understand them to say that all parties that refuse to Work & of no property over the limits of Homestead shal be reported & shal be arrested by the sherif & be made to Work damages out & cost before released[.] … can the[y] do so[?] What Steps Shal Wee Take to defend our selfs[?] let us know me & Harper all about it.” Then, reflecting the community’s hostility toward the labor tax, he commented, “The people are more down on it than the[y] ever have been.”

A month later, in July, W. A. Towsey, having grown even more anxious than Glass, wrote Bibb from Pendleton on stationery of the Chesapeake and Ohio Railway: “How is it that some of the road overseers are warning their hands in since they were at the Court House Monday? Did they get new instructions which stirred them up? I could not get to Court & can’t find out why they have made a move. Ben Smith & Geo Spicer have been out after their hands. Please let me know at once if I had better wait longer or proceed as the others are doing. I did not think Mr Sims would urge them to do any thing until the test case has been tried.” Towsey went on about what he clearly understood as a test case: “I thought it was understood between you and him to let every thing stand until after the trial. I heard that Ben Smith said he had tried to get out of it but could not keep from going to work any longer [for] if he did he would have to pay a fine of $30.00. Please let me hear from you at once. The money I promised is ready when called for and I know a good many more who are prepared to do the same.”

Proffitt’s petition for release argued that the Louisa road law violated the Virginia Constitution of 1869. According to this line of argument, the levy that had led t...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of Maps and Tables
• Preface
• Introduction: Amending Virginia, Amending America
• 1 The Case of the Laborer from Louisa: Conscripts, Convicts, and Public Roads, 1890s–1920s
• 2 Necessity, Charity, and a Sabbath: Citizens, Courts, and Sunday Closing Laws, 1920s–1980s
• 3 These New and Strange Beings: Race, Sex, and the Legal Profession, 1870s–1970s
• 4 The Siege against Segregation: Black Virginians and the Law of Civil Rights
• 5 To Sit or Not to Sit: Scenes in Richmond from the Civil Rights Movement
• 6 Racial Identity and the Crime of Marriage: The View from Twentieth-Century Virginia
• 7 Power and Policy in an American State: Federal Courts, Political Rights, and Policy Outcomes
• 8 From Harry Byrd to Douglas Wilder: Gender, Race, and Judgeships
• Epilogue: Neither Blue Laws nor Black Laws
• Notes
• Index