Market Square in 1844. Engraving from “The Providence Plantations for 250 Years” (1886), p. 87. Source: Wikimedia
In 1825, members of the town council of Providence, Rhode Island, made a public—and unusual—complaint. They took to the newspapers to complain about how much work they had to do. Their goal was to convince the town’s voters to reform local government and take some of the burden off of the council’s shoulders. To support their claims, they compiled a list of all of their duties. This was a rare thing: an enumeration of what kept them busy. Some of these duties, we might reasonable expect: “make and execute the laws for the preservation of the public health.” Others seem quaint: “enforce the law relative to fire buckets.” Still others strike us in a quite negative way: “bind out the children of blacks.”
To “bind out the children of blacks” was to take children—as young as three—away from their families and make contracts (or indentures) for those children to live with other families, serve those families, and to be fed, housed, and trained, in those families, until the age of majority (typically 18 for girls, 21 for boys). The authority to do this is one of those incredibly intrusive and big powers that we often forget local governments had. In many ways, local overseers of the poor and town councilmen exercised far more power in the daily lives of Americans than any president, governor, or justice in the early United States. Binding out the children of blacks was one part of that power in Providence.
To take a child from her parents, with no justification other than her parents’ race, is obviously unjust to us now. We don’t hesitate to condemn it. But, though it provoked no great moral objection in the 1820s, there is one other problem with this “duty”: it had no basis in law.
Nowhere in the laws of Rhode Island are town councils empowered to bind out the children of blacks, per se. Adapted from the Elizabethan Poor Law of 1601, Rhode Island’s poor laws did empower town councils to bind out children of the destitute, but race was not supposed to be a consideration in this law. Specifics about race were added to the Rhode Island poor laws after the state enacted gradual emancipation in 1784. But these specifics were only aimed at the free-born children of enslaved mothers. (Children born in Rhode Island on March 1, 1784, or after would be considered free, no matter whether their mothers were enslaved or not.) Nowhere did the poor law address the children of free black Rhode Islanders. And, by 1820, enslaved people comprised about 1 percent of the state’s “colored” population, according to the census.
Thus, binding out the children of blacks was an extra-legal custom, which the Providence town council, and likely the councils of smaller towns, abrogated to themselves in the first generation after emancipation. The custom was so established that the town council saw fit to publish it among a whole raft of legally sanctioned duties in 1825.
This “duty” was not the only extra-legal use of the poor laws by the town council. On numerous occasions, including in 1822 and 1824, the town council also used the poor laws to ethnically cleanse the town. In those years, the council tasked the overseer of the poor with walking around town; interviewing black residents, and black residents only; and compiling information the council could use to “warn out,” or banish, black residents under the poor law. Because the poor laws allowed the town council to banish any newcomer whom they considered “likely” to need poor relief, the council was within the law in banishing most of these black residents.
It must be noted, however, the poor laws that permitted a town to warn people out made no reference to race. The poor law system ensured that poor relief was justly shared among different towns. Ideally, one big town would not have to bear the entire financial burden of a whole colony—or state’s—poor relief. Thus, a town had the right to warn out needy people who, in theory, could return to a hometown for poor relief. Using the poor law intentionally to target black residents was a clever repurposing of that law. There was no racial discrimination written into the poor laws. But the town council interpreted them in the most discriminatory way possible.
By no means is this the only case of an ostensibly neutral law applied in a discriminatory way. The scholarship of Critical Legal Studies is replete with such cases. What makes the Providence examples compelling are how they highlight the importance of town officials in interpreting and wielding state laws. Scholars often ignore local government when contemplating the power of the state. These examples also show how capacious and multifaceted the poor law could be. It was many things to many people: at times it commanded towns to offer humane care to those in need, and at other times it enabled them to banish those who had few places to go.
Gabriel Loiacono is an associate professor of history at the University of Wisconsin Oshkosh. He is working on a manuscript entitled “Five Lives Shaped by the Poor Law: Welfare in the Early Republic.” He will be presenting more on this topic at OAH 2018 at the panel entitled “Beyond Northern Exceptionalism.”
