Slavery by Another Name (17 page)

the character of law enforcement in the county changed

profoundly46

In November of that year, the jail suddenly l ed with forty- ve

In November of that year, the jail suddenly l ed with forty- ve

prisoners, six charged with burglary, ten accused of carrying a

concealed weapon, six for petit larceny, and, notably, a woman

named Mol ie Stubbs was accused of vagrancy. It was the rst use of

the old-fashioned "idleness" charge in many years, almost certainly

the rst since the end of the Civil War. Stubbs was ordered to work

forty days at hard labor to pay of a $12 fine.47

Now engaged in the business of black labor, the Shelby County

jail stayed a busy place from then on. A month rarely passed in

which there were fewer than twenty prisoners. Charges such as

vagrancy, adultery, using obscene or abusive language, and

obtaining goods under false pretenses suddenly became common,

and were almost always filed against African Americans.

In July 1883, Shelby County recognized that the initial

restrictions placed by local o cials on prisoner leasing were

limiting the revenue that could be generated. The commission

named Amos El iot , the county's best-known and longest-standing

storekeeper and justice of the peace, to act as its agent in the

management of prisoners. El iot was given virtual carte blanche as

to the fate of men arrested in Shelby County, receiving

authorization to hire out prisoners to "persons or corporations" in

accordance with state laws revised earlier that year. The one caveat

was that El iot was also to "make the necessary arrangements for

the safe keeping and proper care of Convicts," and, in accordance

with the rules of treatment the state had adopted along with its

newest statute on prisoner labor, El iot was bound to "scrutinize

and enquire into the management and treatment of said Convicts."48

El iot , already wel acquainted from his many years as a justice

of the peace with the pecuniary bene ts of the Alabama fee

system,49 energetical y took up the rst order of the commission.

There was no indication that he did on the second.

Despite the Shelby commissioners’ initial reluctance to see their

prisoners dispatched to commercial enterprises, the lure of private

sector payments was simply more than any paternalistic good

intentions could resist. In February of 1884, the commission

intentions could resist. In February of 1884, the commission

approved payments to El iot of $273.93 for his work in hiring out

prisoners and judging cases. Approval was also granted for $94

paid to James T. Leeper for his help in placing convicts, and F. A.

Nelson, the county sheri , was authorized to receive $173 for

having arrested them.50 Like El iot , the men engaged in the

county's trade of forced labor weren't marginal or disreputable

gures. The sheri was a popular elected o cial. J. T Leeper was

the county solicitor, and worked as a lawyer in partnership with W.

B. Browne, president of the Columbiana Savings Bank and on

several occasions mayor of the town. 51

The number of men arrested, and the fees paid to such prominent

local white men, escalated swiftly, even as the particularities of the

ostensible judicial process deteriorated. Between late summer of

1884 and the spring of 1886, more than two hundred prisoners

passed through the jail and then into private hands. In county

ledgers, the nature of the charges against most of them, or the

amounts of the fines they were ordered to pay, weren't recorded. 52

Five years earlier, with the passing of New Year's Day 1881, the

people of adjoining Bibb County found themselves under the

extraordinary power of a new county judge. Jonathon S. Gardner,

veteran county commissioner, had been elevated to the nearly

omnipotent position. From a shiny straight-back chair in the

courthouse, Judge Gardner control ed both the judicial and

administrative functions of local government, with the power to tax

citizens, build roads and bridges to their farms, convict them of

crimes, decide their punishments, and incarcerate them as he saw

fit.Gardner succeeded atorney Thomas J. Smitherman, descendant

of one of the county's most prominent families, a major holder of

property, and a neighbor and longtime acquaintance of the

Cot inghams. In August 1865, Smitherman, also a Confederate

veteran, had been authorized by the provisional governor of

Alabama to give oaths of al egiance to residents of the county

Alabama to give oaths of al egiance to residents of the county

wishing to restore their citizenship rights.

While the power of the county judge's position whenever it

intersected with the life of a speci c individual was almost

boundless, there was in fact lit le in the way of meaningful

philosophical policy shifts that the new county judge could e ect.

Which roads and bridges to rebuild after each year's spring

downpours, in what order, and by whom among the smal coterie

of local men who lived primarily o the odd jobs of the county,

were the judge's most consistent questions and demonstrable

executive power.

They were mundane decisions, but often were the determining

factor between which farmers would thrive and which would

wither in isolation. A passable road was critical to the primitive

task of moving to market a ve-hundred-pound load of cot on—the

sole goal of most smal -acreage farmers. A washed-out bridge,

unrepaired, might be insurmountable.

Crime and punishment was the judge's other realm of discretion.

While the number of men brought up on even the smal est of

criminal charges in the nineteenth century was inconsequential—no

more than a dozen a year—the county judge's method of response

was virtual y unlimited. It was here that the new judge Gardner

would make his mark.

Six months after Gardner took o ce, Bibb County joined the

rising tide. Two days after the county's Independence Day

celebrations that July, Dave Wilson was charged with assault and

bat ery and the equal y serious crime of using "abusive and insulting

language in the presence of females." Found guilty, Wilson, a

twenty-one-year-old black farmhand, was sentenced to ten days of

hard labor, under the supervision of the sheri , plus the cost of the

court proceeding.53

A few months later Abram Gri n, an itinerant black farmhand

from Montgomery, 54 faced charges of carrying a concealed weapon

and assault and bat ery. Guns carried by black men were becoming

an increasingly potent issue among white southerners. Across the

an increasingly potent issue among white southerners. Across the

South, but nowhere more intensely than in Alabama, public

campaigns were under way to ban the possession of firearms by any

African American. In an era when great numbers of southern men

carried sidearms, the crime of carrying a concealed weapon—

enforced almost solely against black men—would by the turn of the

century become one of the most consistent instruments of black

incarceration. The larger implications of disarming black men, at a

time when they were simultaneously being stripped of political and

legal protections, were transparent.

Gri n's assault, whatever it was, lit le interested the Bibb County

judge in 1881. He was convicted but ned only $1. On the charge

of carrying a weapon, however, the man faced a serious penalty.

Unable to pay the court a $50 ne and costs, Gri n instead was

forced by Judge Gardner to work at hard labor 188 and one half

days.55

Later that year, Judge Gardner presided over the case of Milton

Cot-tingham, one of the former slaves Elisha had watched come of

age on the banks of the Cahaba and likely another son of Scipio.

Milton was stil working a portion of the land he had farmed as a

slave for Elisha, though by 1880 he was a sharecropper on a plot

next to Rev. Starr's old home on the Cot-tingham Loop. Like Scip,

he had married after slavery to a woman half his age, and lived

with Julie and their two-year-old son, Gabe, just steps from the

slave cabins Milt had known as a boy.

On Hal oween day of 1881, Milton came before Judge Gardner,

charged with malicious mischief. The prosecutor was Thomas

Smither-man, the former judge. At issue was an al eged injury to

some cows owned by A. B. McIntosh.

Only the barest details of the accusation survive in court records,

but it was not uncommon in the South at the time for a white

landowner to accuse a tenant farmer of overworking or otherwise

harming a mule or cow furnished along with the land. Ostensible

injuries to the livestock could be another basis for landowners to

withhold additional amounts from their sharecroppers when it

withhold additional amounts from their sharecroppers when it

came time to set le accounts at the end of the year. Whatever the

specifics in Milt Cot ingham's case, he pleaded not guilty.

Judge Gardner heard testimony on the al eged incident and ruled

the former slave before him guilty. He levied a ne of $24. The vast

majority of African Americans in the county—or the entire South

for that mat er— in 1881, given the same outcome, would have

faced a Faustian bargain. Twenty-four dol ars was a huge sum, the

equivalent for most laborers of three months or more of wages.

Without cash, the typical freedman would have had to choose

between spending a year or more held by the county in a primitive

jail, and working a chain gang on the roads each day. Or he could

agree to work for an even longer period as the near-property of a

white man wil ing to pay the fine on his behalf.

Milt Cot ingham enjoyed a rare advantage. The community of

former Cot ingham slaves remained su ciently intact—and had

prospered enough during Reconstruction—that Milt's brothers,

James and George, appeared on his behalf, with $24 in hand. The

black Cot inghams had not yet been crushed. Milt was set free.56

On February 13, 1893, the Bibb County Commission voted to

"hire out convicts of the County that have heretofore and may

hereafter be convicted." The probate judge, M. Y. Hayes, was made

the labor agent for the county and ordered to enter into a two-year

contract under which convicts would be leased out for $4 per

month "per head," and $2.50 to cover the county court costs of each

prisoner.

Two years later, in 1895, the commission authorized Hayes to

continue leasing "as in his discretion he deems best." At the same

meeting, the commission approved a proposal for upgrading and

repairing a local road— perhaps the modest government's single

most important function in encouraging the prosperity of its rural

residents. The road to be improved that winter was the one leading

to the farm of Elisha's son whose children had been forced to trek

across the war-riven South in 1862, Moses L. Cot ingham.57 When

the cot on came in later that year, the white Cot ingham would

the cot on came in later that year, the white Cot ingham would

have no trouble get ing to market.

IV

GREEN COTTENHAM’S WORLD

"The negro dies faster. "

In the two decades after Henry and Mary Cotinham exchanged

vows at Wesley Chapel, the pair had successful y established their

own self-sustained lives apart from the old Cot ingham plantation.

They and many of the other former slaves who had banded together

with Scipio and lived in proximity at the crossroads of Six Mile

eventual y moved into the set lement at Brier eld, the remnants of

the town surrounding the old furnaces where Scipio had worked as

a slave and a freedman and the location of a basic school for black

children.

The Cot ingham slaves scratched out a tenuous self-reliant life.

But the years did not pass easily. Mary's increase, as Elisha

Cot ingham had cal ed the future o spring of the slave girl Francis

when he gave her away in 1852, had been great, but leavened with

pain and sorrow. She carried nine children to birth. Only six

survived early childhood. Cooney the lit le freedom baby who had

arrived with such expectation, was not among them.

The last of Henry and Mary's children, a fourth boy, came in May

of 1886. Henry cal ed him Green, the same name as Henry's

mulat o uncle born on Elisha Cot ingham's plantation more than