Slavery by Another Name (14 page)

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 Brierfield 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 alternatives 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

he agreed to work for Pace for nine months. Ominously, the

contract included a provision that the black laborer "further agrees

that he wil take such treatment as other convicts."9

In November 1887, the county clerk of Wilcox County wrote the

state o cial in charge of the system for leasing prisoners into mines

and lumber camps, to outline arrangements related to the

anticipated gubernatorial pardon for two black convicts named Cats

Sel ers and Lewis Walker. "My fees for this and forms [and]

applications are contingent on the negroes working with John

Pritchit after their liberation. He having paid for their at orneys

fees, notices," wrote the clerk, Thomas L. Cochran.10 Only the

fees, notices," wrote the clerk, Thomas L. Cochran. Only the

slimmest fraction of men forced into Alabama's slave mines ever

gained a governor's pardon. Even for many of them, freedom did

not mean being free.

In its ful bloom, the misdemeanor convict leasing system solved

two critical problems for southern whites. It terrorized the larger

black population into compliance with a social order in which they

wil ingly submit ed to complete domination by whites, and it

signi cantly funded the operations of government by converting

black forced labor into funds for the counties and states.

Most scholars of American history have accepted that the repressive

legal measures and violence of the post-Civil War era were the

result, at least in part, of the lawless behavior of freed slaves.

Charitable, if patronizing, iterations of this picture at ributed the

supposed criminal inclinations of freed-men to the psychic injuries

of their generations of bondage, or simply to the di culty of any

emancipated people in adjusting to the dynamics of a life in