Slavery by Another Name

by Douglas A. Blackmon

  speci c fees charged to those who voluntarily or involuntarily came

  into the court system. A long schedule of approved fees designated

  the cost of each o cial act those o cials might undertake: 50 cents

  for serving a warrant in a lawsuit over a bad debt; $1 for making an

  arrest on an indictment; 35 cents for a clerk who certi ed a court

  document. Payment was enforced at the resolution of every court

  proceeding, with the accumulated fees lumped into whatever other

  penalty was ordered by a judge. After the advent of widespread

  convict leasing, the fees—which usual y amounted to far more than

  the actual nes imposed on defendants—were paid o from the

  payments made by the company that acquired the prisoner.

  Before the war and immediately afterward, the cases brought

  before the county judge and his fel ow commissioners in most rural

  southern counties were drearily routine, and rare. In the great

  majority of cases in Bibb County and similar places, the penalty for

  guilt was a ne of $1, regardless of the o ense. The point of the

  prosecution and conviction was not so much to mete out justice

  from the government but to establish de nitively that an o ense

  had been commit ed and compel the guilty party and the victim to

  resolve their di erences. If a drunken man injured a neighboring

  resolve their di erences. If a drunken man injured a neighboring

  farmer's cow, then the court's role was to ensure that the drunk paid

  for the loss. Incarceration was an expensive and impractical

  outcome in a society where cash rarely changed hands.

  Already, the practice had become established of one man acting

  as "surety" for the ne imposed on another. Traditional y, this

  meant the father, brothers, or neighbors of a man convicted of a

  crime coming into court to pay his nes and assure the court of his

  future good conduct. In many cases, the surety would actual y be

  the victim of the crime, agreeing to resolve a dispute in return for a

  contract with the accused to work as payment for the damages he

  had done.

  The county was interested in neither rehabilitation nor long-term

  punishment , particularly in an era when every man was needed to

  sta the farms and enterprises of the county. With the exception of

  those men who clearly merited the noose, most miscreants could be

  rendered harmless if they simply stayed at whatever lonely place on

  a muddy road they had appeared from. Those guilty of serious

  felony crimes were the business of the state, anyway—tried and

  sentenced by state circuit court judges and incarcerated however

  and wherever the state saw t. The local sheri was a referee in the

  world of misdemeanors, cal ing fouls and separating fighters.

  Where sheri s exercised their greatest power was in the

  enforcement of debts. In Shelby County, where Green Cot enham

  would ultimately be arrested three decades later, Amos M. El iot

  owned a store on a backcoun-try road, and by the 1870s had

  become a stalwart citizen of his corner of the county. Merchants

  such as he were as much bankers as retailers. Nearly every purchase

  was made on credit to be repaid when a farmer's crop was sold at

  the end of a season. More often than not, the store owner would be

  the buyer of the crop as wel , meaning that the man who had

  plowed the elds and picked the cot on or corn might never

  actual y see hard currency. His debts, payments, and pro t or loss

  were recorded only in the ledgers of the store. This was even more

  were recorded only in the ledgers of the store. This was even more

  so the case for a black man.

  El iot was also justice of the peace—the most visible presence of

  government authority in the crude world of country life,

  empowered to perform marriages, formalize contracts between

  parties, and otherwise represent law and order. In the late 1870s,

  El iot 's docket was l ed with cases involving disputes over

  amounts ranging from $5.85 to $7.45. A judgment— ordering

  payment to a particular party or a term of forced labor in lieu of

  one—often triggered a busy trade in bet ing on the future of the

  convicted man. Judgments were treated like securities, and were

  resold at discounts based on the likelihood, or not, of the losing

  party being able to pay them.

  In every case, the sheri and El iot , as the presiding justice of the

  peace in his beat of the county, received a portion of the set lement

  as a fee. Many times, El iot himself agreed to pay a defendant's

  judgment and then take a mortgage in the same amount on the

  man's property. In nearly every one of the 225 cases he heard

  between 1878 and 1880, El iot ordered that "al of the defendants

  [sic] personal property is therefore liable to the satisfaction of this

  judgment."6

  In July 1882, El iot ordered Harman Davis to pay a $30.88

  judgment on a three-year-old debt. El iot paid the amount himself,

  and Davis signed a mortgage to repay the money to him with

  interest. The consequences of losing a case over a $5 debt could be

  catastrophic. Alf Barret was sued for $5 on September 6, 1879, and

  then failed to appear at the trial El iot convened. El iot declared

  the man to be in default and ordered that he pay the plainti

  $5.07, 60 cents each to the sheri and himself, and 50 cents each to

  three witnesses. Two months later, to clear the obligations, the

  sheri seized every article of property to which Barret could lay

  claim, "one lounge, 1 Round Table, 1 Lamp, 1 looking Glass, 4

  Picture frames & Pictures, 3 chairs, 2 Wash Tubs, Wash Stand, Bowl

  & Pitcher, 1 Lantern, & 3 Sad Irons."

  The jeopardy at ached to minor violations of the law would soon

  The jeopardy at ached to minor violations of the law would soon

  become much more serious than to be stripped of every possession.

  The South's judicial tradition of using the criminal courts to set le

  civil debts, and of treating a man's labor as a currency with which

  to pay nes and mortgages, was being recognized, ominously, by

  the new commercial engines of the era. In Alabama, the nexus of

  new economic mechanisms, old legal pat erns, and antebel um

  traditions of industrial slavery occurred more natural y than in any

  other place.

  The system of leasing convicts soon radical y altered the

  implications of the debt enforcement process and the signi cance of

  each o cial involved in it. County sheri s and judges had dabbled

  with leasing black convicts out to local farmers, or to contractors

  under hire to repair roads and bridges, beginning almost

  immediately after the Civil War. But as the state turned ever larger

  blocs of African Americans over to private companies, an organized

  market for prisoners began to evolve. Soon, labor agents for the

  mining and timber companies were scouring the countryside to

  make arrangements for acquiring able-bodied black laborers—just

  as John Til man had done to locate slaves for the Shelby Iron

  Works during the war, just as Rev. Starr's son was doing when Scip

  Cot inham was leased to the Brierfie
ld furnaces in the 1860s.

  Instead of slave owners, the men who now control ed squads of

  black laborers available to the highest bidder were sheri s. The key

  distinction, however, between the sheri and the old slave masters

  was that since these African Americans were not his or anyone else's

  permanent property, he had no reason for concern about how they

  were treated by their new keepers or whether they survived at al .

  By the early 1880s, twenty-nine of Alabama's sixty-seven counties

  were leasing their prisoners.7 The trade in black workers continued

  to swel . Because of the nancial bene ts of leasing convicts rather

  than sending them to state o cials, some counties opted to

  prosecute men accused of felonies on misdemeanor charges— solely

  so the sheri and other locals could receive the proceeds of the

  prisoner's lease. County prisoners eventual y far surpassed the

  number of men pressed into forced labor by the state.

  number of men pressed into forced labor by the state.

  Control of those county convicts was lucrative, for both the

  companies who acquired them and the sheri s who supplied them.

  In addition to the fees they received from defendants, sheri s also

  kept any amount left over from daily feeding fees paid for each

  prisoner by the state. As a result, Alabama's sheri s were nancial y

  motivated to arrest and convict as many people as possible, and

  simultaneously to feed them as lit le as they could get away with.

  In counties where large numbers of convicts were sold to the

  mining companies, such as Je erson County, where Birmingham

  was located, a speculative trade in convict contracts developed. The

  witnesses and public o cials who were owed portions of the lease

  payments earned by the convicts received paper receipts—usual y

  cal ed scrips—from the county that could be redeemed only after a

  convict had generated enough money to pay them o . Rather than

  wait for the ful amount, holders of the scrips would sel their notes

  for cash to speculators at a lower than face amount. In return, the

  buyers were to receive the ful lease payments—pro ting

  handsomely on those convicts who survived, losing money on the

  short-lived. In Je erson County, the nancial arrangements on each

  convict were recorded in ledger books showing earnings due to

  each o cial and then a subsequent calculation of the nal rate of

  return on each prisoner after his release, escape, or death.8

  The job of a county sheri became a heady enterprise, often

  more akin to the business of trading in mules than law

  enforcement. Sheri s and their local judges developed special

  relationships with local companies and preferred acquirers of their

  prisoners. Arrests surged and fel , not as acts of crime increased or

  receded, but in tandem to the varying needs of the buyers of labor.

  Companies, commissioners, justices of the peace, probate judges,

  and sheri s issued o ers of rewards for escapees. Constables

  arrested men on speculation that they might be wanted elsewhere,

  seizing them on the basis of rumors, and then inquiring whether

  there might be reward money available in the county from which

  they hailed. Town bul ies and rural store owners such as El iot

  became bounty hunters verging on extortionists.

  became bounty hunters verging on extortionists.

  Swift, uncomplicated adjudication was the key to the system.

  Trials were discouraged; lawyers for black misdemeanor defendants

  were scant. Indeed, the fee system—with its additional charge for

  each act in the judicial process or appearance of another witness or

  o cial—was a built-in disincentive to prisoners who knew that

  each added dol ar of their nal ne and costs would ultimately

  equate to additional days held in forced labor. The span of time

  from arrest to conviction and judgment to delivery at a slave mine

  or mil was often no more than seventy-two hours. The most

  common penalty was nine months to a year in a slave mine or

  lumber camp.

  Al of this was predicated on the absolute defenselessness of

  black men to the legal system, and the near certainty that most

  would be unable to bond themselves out of jail or pay nes

  imposed upon them. Across Alabama, northern Florida, and

  Georgia, a bewildering world of casual judicial process emerged in

  which a davits were scribbled on scraps of notebook paper, half-

  o cial judges and strongmen assuming the authority to arrest

  resided every few miles, men were identi ed and arrested on the

  basis of meaningless physical descriptions, and hardly anyone could

  sign their own name. Increasingly, it was a system driven not by any

  goal of enforcement or public protection against serious o enses,

  but purely to generate fees and claim bounties.

  The county convict leasing system, with its e cient mechanisms

  for forcing black men to do the bidding of white business operators,

  soon leached into the process of col ecting debts of any kind. White

  farmers who advanced money to black tenants at the beginning of a

  crop season began to enforce their debts not by evicting those black

  men who fel behind, but by swearing out criminal warrants

  accusing them of fraud. Facing certain conviction by a local white

  judge, most laborers wil ingly agreed to accept their white

  landlords—who had brought them to court in the rst place— as

  their "sureties." The defendants typical y would "confess judgment,"

  an archaic legal concept under which the accused confesses his

  responsibility before being tried. The local judge then accepted

  responsibility before being tried. The local judge then accepted

  payment and forfeiture of a bond from the white surety, rather than

  render a verdict on the al eged "crime." In return, the African

  American farmer would sign a contract to work without

  compensation for the white landlord for however long it took to

  pay back the amount of the bond.

  The instances of confessing judgment spread rapidly through the

  farming regions of the South, according to local court dockets of the

  1880s and 1890s. This was especial y true as southern states

  adopted more statutes intended to criminalize routine black

  behaviors—such as carrying a weapon, riding on empty freight train

  cars—or violations of racial etiquet e such as speaking loudly in the

  presence of white women. On its face, the arrangement appeared

  similar to other practices that would remain common in the courts

  for the next century and beyond—granting mercy to a criminal

  partly in exchange for a commitment to repair the damage of their

  crimes, and place themselves under the close supervision of a

  trusted party.

  Occasional y, confessing judgment in the 1880s was precisely just

  such a legitimate, humane resolution of a legal mat er. But only

  rarely. The records of thousands of prosecutions show it was vastly

  more likely that an arrested black man—knowing he had no

  possibility of true due process, or acquit al—agreed to confess

  judgment speci cal y to avoid the far more dire alternati
ves that he

  knew lay in wait. It was the nineteenth-century equivalent of

  modern plea bargains, in which a defendant agrees to a lesser

  sentence ahead of trial in order to be spared any possibility of the

  most severe punishment. The exception being that in the variation

  of this practice in the 1880s, it was a nearly foregone conclusion

  that the man under arrest would be found guilty of something.

  Often, his only hope for moderating the blow was to negotiate the

  most bearable form of forced labor.

  The black men who confessed judgment avoided being sold into

  the slave mines, but traded that fate for onerous labor contracts

  closer to home or working under men they had at least elementary

  knowledge of—their present landlord, or often with the same farm

  knowledge of—their present landlord, or often with the same farm

  families under whom they or their slave forebears had worked in

  antebel um times. The result was that black tenant farmers and

  sharecroppers often returned as uncompensated convict laborers,

  subject to imprisonment, shackles, and the lash, to the same elds

  where a few days earlier they had worked as independent, free

  men. White farmers often continued to claim that the convict

  laborer was incurring additional debts for necessities such as visits

  by a doctor, medical care, clothing, damaged implements, or

  housing. Once captured by a contract under which the black man

  was not free until al his debts were paid, the "convict"—who in fact

  might never have been found guilty of a crime— could be held

  almost inde nitely. Moreover, almost any white person who

  became involved in the resolution of a black man's legal situation

  could casual y add his own "costs" to the balance of a prisoner's

  debt and compel him to labor for an even longer period.

  When a black man named Sevi Pearson was accused in

  Tal apoosa County of bat ery against a woman named Cora Iverson

  in April 1885, he confessed judgment to an elderly notary public

  named Luke Davenport as part of an arrangement with John W

  Pace, an active acquirer of black men through the courts.

  Davenport, whose legal credentials were limited to a stint as an

  acting justice of the peace three decades earlier, had the legal

  power to order Pearson to pay a total of $70.50. Pace paid the

  penalty for him instead, and Pearson signed a contract under which