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
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