The origins of America's "no trespassing" sign can be traced back to key events and shifts in property rights and racial dynamics.
In fact, prior to the Civil War, there was a well-established tradition of an open, roaming countryside. Renowned history Professor Brian Sawers has covered this issue in more detail in a notable piece revolving around his life’s work.
Origins of the “No Trespassing” Laws
Before the Civil War, the East of America was once an open space where anyone could roam freely. But with the Civil War, a brand-new crime emerged, and the custom of unrestricted access to land started to change.
The turning point in this free-to-roam practice was in 1865, following the conclusion of the Civil War. It was during this time when landowners began to have the authority to restrict access to their properties, and this also happened to be the birth of trespassing laws.
Notably, South Carolina played a significant role in the early establishment of trespass laws. A South Carolina landowner sued hunters in 1818 and 1820 when they refused to leave his property, but the state high court ruled in favor of the hunters, citing the universally exercised right to enter private land.
After the Civil War Came the No-Trespassing
After the Civil War, certain Southern states—South Carolina, Mississippi, among them—reinstituted antebellum Black Codes, which limited Black people's freedom of movement and rights.
The Louisiana legislature passed a color-blind law that made trespassing illegal in December 1865. By the end of 1866, new trespass laws were passed across the South, purportedly race-neutral but with severe penalties. Georgia also passed a trespass legislation. These laws were employed to regulate the freed-from-slavery migration of Black people.
The Sinister Economic Motivation Behind the No-Trespass
Trespassing was made a crime for reasons other than only racism, such as economic ones. Plantation owners anticipated that now-free Black people would retreat to the hills and rely less on plantation labor, causing an agricultural collapse like to what occurred in the Caribbean after slavery ended.
Before Emancipation, many enslaved Black people had their gardens and relied on foraging, fishing, and hunting for wild food, in addition to their limited rations according to historical accounts.
After emancipation, they could have sustained themselves from the open countryside (without the no-trespassing laws), selling their produce and wild food. Moreover, the scarcity of white labor in the South during Reconstruction made it more important to hook in Black People and their labor through such sinister laws.
For instance, land owners in the South looked to state governments to help coerce Black people into working under unfavorable conditions and low wages. According to Sawyers article appearing on the Mississippi Law Journal, Trespass rules were one tactic to limit Black people's access to the countryside and their ability to support themselves.
The scholar adds that the discussions around this new strategy took place openly. For example, planters listed trespass, dog taxes, and vagrancy statutes as "Needed Laws" to control the movement of Black people.
Targeting a Minority Black Population with Trespassing Laws
Because most white people were not big landowners, and their traditional rights to hunt and fish on open land were affected by trespass laws, the planters proposed and state legislatures adopted laws county by county. This strategy primarily targeted Majority-Black areas with the view of limiting their access to land-based resources.
Eventually, a business model that emerged after the Civil War helped these Southern trespass laws to migrate northward. According to Vivian's book, A New Plantation World, Rich Northerners who were drawn to the human-safari element and the presentation of "genuine" Black males who were old enough to have lived as "faithful" slaves were organized hunting trips by Southern farms.
In order to satisfy landowners' demand for a monopoly over the countryside, northern states enacted similar regulations. Even the Massachusetts legislature came to the conclusion that it was best if wild animals disappeared as soon as possible.
Northern landowners gradually succeeded in privatizing the outdoors over time by taking baby measures and focusing on the weakest and most vulnerable people.
In 1909, Pennsylvania passed a law with the express purpose of prohibiting immigrants from going hunting. In support of the legislation, the U.S. Supreme Court cited the state's "local experience" and identified immigration as the "peculiar source of the evil" that needed to be stopped.
The Current State of No-Trespass Laws
Despite more than 150 years of trespass regulations, landowners have not fully succeeded in privatizing the outdoors. The federal government and the states have set aside territory for outdoor activities, and some governments still maintain traces of public access.
Because of the long-standing practice of free access before it changed, an open countryside is not un-American. The argument that private property owners have an inherent right to restrict access is untrue, and the current restrictions were put in place as a result of Southern landowners' attempts to compensate themselves for the abolishment of slavery. The author calls for a moment when everyone will be able to access and enjoy the countryside once more.