III

SLAVERY’S INCREASE

"Day after day we looked Death in the face & was afraid to speak."

Henry and Mary did not wait long to begin their increase. Cooney, a little girl, came to them before the end of another harvest season had passed.1 The arrival of an infant, even more so a first child, to a pair of former slaves in the first years after emancipation must have been an event of sublime joy. A young black family of the early 1870s already knew that the presumptions of full freedom that had accompanied the end of slavery were being gravely challenged in the South. But surrounding and overwhelming the anxieties triggered by those obstructions—violence by the Ku Klux Klan and other paramilitary groups and the machinations of white political leaders—was the astonishing range of possibilities now at least theoretically available to a newly born child.

While Cooney was still a babe, the northern states by overwhelming majorities ratified the Fourteenth and Fifteenth amendments to the Constitution, abolishing with absolute clarity the institution of slavery as it had existed for the previous 250 years and granting full citizenship and voting rights to all black Americans. A black toddler in central Alabama would learn his first words at a time when black men were gathering regularly with others to elect those who would govern their counties and states.

Cooney was seven years old when the U.S. Congress passed its first Civil Rights Act, further guaranteeing the right of African Americans to vote on the same terms as whites and to live as full citizens in the eyes of the law. The new state legislatures of the South, now including substantial numbers of black Republicans, passed laws mandating for the first time in the southern states that children, whether black or white, be afforded some semblance of basic education. By 1871, more than 55,000 black children were attending public school in Alabama.

Henry and Mary knew there would be trouble, yes, plenty of it. But the young man and woman, illiterate, provincial, and unskilled, had every reason to expect nonetheless that in the expiring of ten or twenty years, their daughter and the boisterous brood of boys and girls who would follow her would live lives in a world so transformed from their own as to be utterly unrecognizable.

By the time Cooney turned two, as Thanksgiving approached in 1870, the most defining feature of the old Cottingham world, Elisha, the white man who had sculpted the landscape onto which Cooney was born and then seen it disintegrate, was dead.

Elisha was laid to rest at the top of the red-clay hill, surrounded by what was left of the stand of beech and oak that had greeted his arrival in the wilderness. As his life had been on the landscape stretched out around him, Elisha's plot was squarely in the center of the graveyard, with his wife, siblings, and kin fanning out to each side. One body length away, just within arm's reach, lay in death a long row of the slaves he had governed for most of a century in life.2

Old Scip, once Elisha's most reliable slave, was not easing gently toward his natural end. Freedom had taken tangible form for the former slaves of the Cottingham farm. Old Elisha's former slaves separated into three groups. The first, beginning with young Albert Cottingham, abandoned Bibb County and the place of their enslavement as quickly as it had become clearly established that they were in fact free to go wherever they wished.

Three other black families—each of them led by one from the generation of middle-aged slaves who had spent the longest spans of their lives as Cottingham slaves—chose to remain close by the old master, likely still residing in the slave quarters a short distance from Elisha's big house and later in simple tenant cabins erected to replace them. The elder Green Cottinham , a partly white slave now forty years old, along with his wife, Eme-line, and their baby boy, Caesar, remained on the farm. Likely Green's mulatto line connected him directly to the white Cottinghams, but no record survives to indicate whether that was so. Another slave father to remain on the place was Jeff Cottingham, forty-eight, who continued to spell his name as his former master did, and who was raising in his home an eight-year-old boy named Jonathon, who was also partly white.3Also staying behind was Milt, another of the older crew of slaves.

On the other side of the big house, away from the slave cabins, lived the youngest of Elisha's sons to reach adulthood, Harvey, also forty years old, with his wife, Zelphia, and seven children. Slightly farther down the wagon road, J. W. Starr's widow, Hannah, remained in the preacher's house, though her son Lucius had become the master of the household. Next door to them, a Starr daughter and her family farmed on another portion of the dead reverend's land.

A few miles away, beyond Cottingham Loop, at the edge of the Six Mile settlement around which the lives of all the Cottinghams had come to orbit, Scip and the third group of former slaves settled themselves in a life overshadowed by their former enslavement but clearly distinct from the controlled lives they had formerly led.

At the center of those former slaves remained Scipio, still defiantly insistent that his birth as an African and the African origins of his mother and father be fully recorded whenever the census taker or another government official inquired as to his provenance. He took the name Cottinham.

Six Mile had the vague makings of a real town, with a small school and a weekly newspaper that boasted of a cluster of homes, two stores, and a sawmill. On one boundary of the settlement lived George Cottinham, now forty-five, and next door lived Henry, twenty-two years old, and Mary, with the little girl Cooney George and Henry, as father and son, farmed rented property, probably owned by the white Fancher family nearby.

Two houses away, Scip was ensconced with Charity, his junior by thirty-eight years, and the five children they had under the age of fourteen. The effort by General Gorgas to rebuild the Brierfield furnaces had collapsed, and the weary Confederate industrialist turned over the operation to another ex-rebel officer turned entrepreneur.

Scipio worked under his supervision at the Bibb furnace where he had spent so much of the wartime years, still laboring at the task Elisha had sent him to learn in the effort to save the Confederacy. He traveled daily to the furnaces, several miles away, usually in the company of four much younger black men who boarded in a small house near the dry goods store in Six Mile. Sometimes, Scip would spend the night near the furnace in rented lodgings with two of the men, Toney Bates, twenty-two, and Alex Smith, nineteen.4

The free lives of Scip, George, and Henry were hardly easy. But for the first time they were truly autonomous of Elisha Cottingham and his kin. How long such black men in the post-emancipation South could remain so would become the defining characteristic of their lives.

As slaves, men such as Scipio and Henry were taught that their master was a palpable extension of the power of God—their designated lord in a supremely ordained hierarchy. In the era of emancipation, that role—now stripped of its religiosity and pared to its most elemental dimensions of power and force—was handed to the sheriff.

This was a new capacity for local law enforcement officers, and the small circles of elected officials who also played a part in the South's criminal and civil justice systems. Prior to the Civil War, all of government in the region, at every level, was unimaginably sparse by modern standards. In Alabama, an elected board of county commissioners oversaw local tax collections and disbursements, primarily for repairs to bridges, maintenance of the courthouse, and operation of a simple jail. The sheriff, also chosen by the people, usually spent far more time serving civil warrants and foreclosing property for unpaid debts than in the enforcement of criminal statutes. The arbiter of most minor legal disputes and alleged crimes would be a justice of the peace, normally a local man appointed by the governor to represent law and government in each "beat" in the state. In an era of exceedingly difficult transportation, beats were tiny areas of jurisdiction, often limited to one small quadrant of a county. One rural Alabama county elected thirty justices of the peace in 1877.5 But within those boundaries, the justice of the peace—more often than not the proprietor of a country store or a large farm—held tremendous authority, including the power to convict defendants of crimes that carried potential sentences of years of confinement.

In most southern states, county sheriffs and their deputies received no regular salaries. Instead, the law enforcement officers, justices of the peace, certain court officials, and any witnesses who testified against a defendant were compensated primarily from specific fees charged to those who voluntarily or involuntarily came into the court system. A long schedule of approved fees designated the cost of each official act those officials 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 certified 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 usually amounted to far more than the actual fines imposed on defendants—were paid off 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 fellow 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 fine of $1, regardless of the offense. The point of the prosecution and conviction was not so much to mete out justice from the government but to establish definitively that an offense had been committed and compel the guilty party and the victim to resolve their differences. 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 fine imposed on another. Traditionally, this meant the father, brothers, or neighbors of a man convicted of a crime coming into court to pay his fines and assure the court of his future good conduct. In many cases, the surety would actually 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 staff 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 fit. The local sheriff was a referee in the world of misdemeanors, calling fouls and separating fighters.

Where sheriffs exercised their greatest power was in the enforcement of debts. In Shelby County, where Green Cottenham would ultimately be arrested three decades later, Amos M. Elliott 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 well, meaning that the man who had plowed the fields and picked the cotton or corn might never actually see hard currency. His debts, payments, and profit or loss were recorded only in the ledgers of the store. This was even more so the case for a black man.

Elliott 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, Elliott's docket was filled 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 betting 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 sheriff and Elliott, as the presiding justice of the peace in his beat of the county, received a portion of the settlement as a fee. Many times, Elliott 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, Elliott ordered that "all of the defendants [sic] personal property is therefore liable to the satisfaction of this judgment."6

In July 1882, Elliott ordered Harman Davis to pay a $30.88 judgment on a three-year-old debt. Elliott 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 Barrett was sued for $5 on September 6, 1879, and then failed to appear at the trial Elliott convened. Elliott declared the man to be in default and ordered that he pay the plaintiff $5.07, 60 cents each to the sheriff and himself, and 50 cents each to three witnesses. Two months later, to clear the obligations, the sheriff seized every article of property to which Barrett 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 attached 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 settle civil debts, and of treating a man's labor as a currency with which to pay fines and mortgages, was being recognized, ominously, by the new commercial engines of the era. In Alabama, the nexus of new economic mechanisms, old legal patterns, and antebellum traditions of industrial slavery occurred more naturally than in any other place.

The system of leasing convicts soon radically altered the implications of the debt enforcement process and the significance of each official involved in it. County sheriffs 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 Tillman had done to locate slaves for the Shelby Iron Works during the war, just as Rev. Starr's son was doing when Scip Cottinham was leased to the Brierfield furnaces in the 1860s.

Instead of slave owners, the men who now controlled squads of black laborers available to the highest bidder were sheriffs. The key distinction, however, between the sheriff 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 all. By the early 1880s, twenty-nine of Alabama's sixty-seven counties were leasing their prisoners.7 The trade in black workers continued to swell. Because of the financial benefits of leasing convicts rather than sending them to state officials, some counties opted to prosecute men accused of felonies on misdemeanor charges— solely so the sheriff and other locals could receive the proceeds of the prisoner's lease. County prisoners eventually far surpassed the 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 sheriffs who supplied them. In addition to the fees they received from defendants, sheriffs also kept any amount left over from daily feeding fees paid for each prisoner by the state. As a result, Alabama's sheriffs were financially motivated to arrest and convict as many people as possible, and simultaneously to feed them as little as they could get away with.

In counties where large numbers of convicts were sold to the mining companies, such as Jefferson County, where Birmingham was located, a speculative trade in convict contracts developed. The witnesses and public officials who were owed portions of the lease payments earned by the convicts received paper receipts—usually called scrips—from the county that could be redeemed only after a convict had generated enough money to pay them off. Rather than wait for the full amount, holders of the scrips would sell their notes for cash to speculators at a lower than face amount. In return, the buyers were to receive the full lease payments—profiting handsomely on those convicts who survived, losing money on the short-lived. In Jefferson County, the financial arrangements on each convict were recorded in ledger books showing earnings due to each official and then a subsequent calculation of the final rate of return on each prisoner after his release, escape, or death.8

The job of a county sheriff became a heady enterprise, often more akin to the business of trading in mules than law enforcement. Sheriffs and their local judges developed special relationships with local companies and preferred acquirers of their prisoners. Arrests surged and fell, 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 sheriffs issued offers 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 bullies and rural store owners such as Elliott 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 official—was a built-in disincentive to prisoners who knew that each added dollar of their final fine 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 mill 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.

All 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 fines imposed upon them. Across Alabama, northern Florida, and Georgia, a bewildering world of casual judicial process emerged in which affidavits were scribbled on scraps of notebook paper, half-official judges and strongmen assuming the authority to arrest resided every few miles, men were identified 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 offenses, but purely to generate fees and claim bounties.

The county convict leasing system, with its efficient mechanisms for forcing black men to do the bidding of white business operators, soon leached into the process of collecting 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 fell behind, but by swearing out criminal warrants accusing them of fraud. Facing certain conviction by a local white judge, most laborers willingly agreed to accept their white landlords—who had brought them to court in the first place— as their "sureties." The defendants typically would "confess judgment," an archaic legal concept under which the accused confesses his 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 alleged "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 especially 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 etiquette 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.

Occasionally, confessing judgment in the 1880s was precisely just such a legitimate, humane resolution of a legal matter. 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 acquittal—agreed to confess judgment specifically 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 families under whom they or their slave forebears had worked in antebellum 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 fields 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 all his debts were paid, the "convict"—who in fact might never have been found guilty of a crime— could be held almost indefinitely. Moreover, almost any white person who became involved in the resolution of a black man's legal situation could casually 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 Tallapoosa County of battery 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 will take such treatment as other convicts."9

In November 1887, the county clerk of Wilcox County wrote the state official 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 Sellers and Lewis Walker. "My fees for this and forms [and] applications are contingent on the negroes working with John Pritchitt after their liberation. He having paid for their attorneys fees, notices," wrote the clerk, Thomas L. Cochran.10 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 full 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 willingly submitted to complete domination by whites, and it significantly 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 attributed the supposed criminal inclinations of freed-men to the psychic injuries of their generations of bondage, or simply to the difficulty of any emancipated people in adjusting to the dynamics of a life in freedom.

The reality of crime in the era, based on the actual arrest records of many counties in Alabama, Florida, and Georgia, is that true crime was almost trivial in most places. In the Bibb County of January 1878, where African Americans still had the legal right to vote, the biggest criminal threat to the peace of the county was a band of Gypsies plying their wares from an encampment near Columbiana and wandering the muddy wagon rut roads in the country. To move them along, the sheriff brought charges of vagrancy and of trading goods between the hours of sunrise and sunset— an "offense" that would increasingly be used to prevent freed slaves from buying goods from anyone other than their white landlords. Before the case could be heard, the idle Gypsies moved on. Peace was maintained.

Later that year, during the summer, James Cottingham, one of Elisha's many white grandsons and a regular troublemaker in the postwar years, was convicted of assault and battery with a weapon. His fine was $1 plus court costs. He paid it and was free.

In neighboring Shelby County, the arrest log of 1878 shows only twenty-one prisoners brought to jail for the year. There were three homicides in that time, and a woman named Lucy Cohill was arrested for adultery—a charge that in almost all instances stemmed from sexual relations between a black and a white. But few other cases even registered in the public eye. The total fees charged to all those arrested amounted to $80.80.11 Little changed over the next two years, with the number of inmates in the county jail never exceeding twenty.

All of that transformed as the value of leasing black convicts became more apparent. County after county was adopting the practice. The attraction was not just that local officials could fob off most of the cost and trouble of housing and guarding prisoners. By the end of the 1870s, the opportunity represented by forcing black laborers into the mines was being richly fulfilled at Milner's Newcastle Coal Co., operating just north of where the Pratt Mines were then being developed, and Shelby County's Eureka mines.

The Eureka mine complex consisted of two operations, one manned by free miners and the other by convicts. Managing the forced labor was J. W. Comer, a descendant of one of Alabama's great prewar slave-owning families and a brother to Braxton Bragg Comer, who would become Alabama's governor in 1907. Under Comer, the Eureka Iron Works thrived on a cruel mix of primitive excavation techniques and relentless, atavistic physical force.

State inspectors sent to the convict work camps wrote repeatedly during the 1870s that the "convicts everywhere were being properly cared for and guarded …humanely treated."12 Similarly facile characterizations would be issued repeatedly by other examiners over the decades of convict leasing, often the result of payoffs between the acquirers of forced laborers and their supposed supervisors.

The reality of conditions inside the Eureka mines was documented with rare clarity as a result of a brief state inquiry in 1881 into Comer's operations and Milner's Newcastle mines. More significantly, vignettes of Comer's conduct were also recorded as a result of the presence of a prisoner able and willing to complain of conditions named Ezekiel Archey and the tenure of a nominally sympathetic Alabama official in charge of guarding the welfare of leased prisoners, Reginald H. Dawson.13

Archey, a prisoner leased into Comer's Eureka mines, wrote that the convicts lived in a windowless log stockade, their quarters "filled with filth and vermin." Gunpowder cans were used to hold human waste that periodically "would fill up and runover on bed" where some prisoners were shackled in place at night. Prisoners left for the mine at 3 A.M. in chains, forced to march at a quick trot. The grueling task of boring rock for dynamite, exploding sections of a seam of coal, and shoveling tons of the remains into cars lasted until 8 P.M.14

"Every Day some one of us were carried to our last resting, the grave. Day after day we looked Death in the face & was afraid to speak," Archey wrote. "We can go back to ‘79 and ‘77 all these years of how we sufered. No humane being can tell …yet we hear. Go ahead. Fate seems to curse a convict. Death seems to summon us hence." Indeed, between 1878 and 1880, twenty-five prisoners died at the Eureka mines, most dumped unceremoniously into shallow earthen pits on the edge of the mine site.15

During hearings held by the special legislative commission in 1881 to inquire into the conditions and operations of the convict leasing system, a witness named Jonathon D. Goode testified that Comer ordered a recaptured black escapee to lie "on the ground and the dogs were biting him. He begged piteously to have the dogs taken off of him, but Comer refused to allow it."

Then, Comer "took a stirrup strap, doubled it and wet it, stripped him naked, bucked him, and whipped him—unmercifully whipped him, over half an hour. The Negro begged them to take a gun and kill him," Goode continued. "They left him in a Negro cabin where … he died within a few hours."16

An assistant superintendent at the mine, James O’Rourke, testified that guards whipped prisoners with "a leather strap or stick about an inch broad and two foot long." For offenses as generic as "disobeying rules," state law allowed up to thirty-nine lashes. Punishment was far more severe for infractions as minor as fighting, tearing bedding, or insolence toward guards. One witness told of the use of water torture at Eureka, on convicts for whom whipping was deemed insufficient. Such prisoners were physically restrained. Then, "water [was] poured in his face on the upper lip, and effectually stops his breathing as long as there is a constant stream."17 Over the next thirty years, variations of this medieval water torture technique were repeatedly employed in southern slave labor camps, in some cases supplanting whipping as a preferred method of punishment. Many convict managers chose this terrifying method because the convict was able to more quickly recover and return to work than after a severe flogging.

The commission also investigated Milner's Newcastle mines, where both state and county convicts were at work. Milner was already one of the key industrial pioneers of Alabama, having mapped and directed the effort to build one of the state's most important railroad routes prior to the Civil War. Milner had grown up in a slave-owning family, and in early adulthood owned "a little negro of his own named Steve, who followed him about like a shadow," according to one contemporary. Milner put his Steve and several other slaves to work prospecting for gold in the 1840s to earn his tuition for college.18 Elected to the state Senate in 1866, Milner, short of height but a deliberate speaker, was a key figure in the later ouster of African Americans from all political participation and authored a widely distributed statement titled, "White Men of Alabama Stand Together." He was one of the founders of the city of Birmingham in the 1870s.

By 1881, Milner was already one of the state's most substantial industrialists. His primary company, Milner Coal and Railway Company, developed extensive mines at Coalburg and Newcastle, north of Birmingham. At Newcastle, Milner played the part of a self-aggrandizing antebellum slave master. The complex featured its own private railroad, more than 150 forced laborers acquired from the state and various counties, and an elaborate system of high-temperature beehive ovens used to make coke—a derivative of regular bituminous coal from which impurities had been baked out. A quarter mile from the mine, Milner presided over his family and received political and business visitors in a spacious house featuring a detached kitchen, smokehouse, and barns. Orchards and rose gardens crowded the home.19

It was a different scene in the prison mine not far away. A description of Milner's mine by The New York Times in December 1882 told of black prisoners packed into a single cramped cabin like slaves on the Atlantic passage. The building had no windows. Vermin-ridden bunks stacked three high were covered with straw and "ravaged blankets." "Revoltingly filthy" food was served cold from unwashed coal buckets, and all 150 black convicts shared three half-barrel tubs for washing. All convicts were forced to wear shackles consisting of an "iron hoop fastened around the ankle to which is attached a chain two feet long and terminating in a ring."20

The powerful utility of slave labor as a weapon against the unionization of free laborers began to become most apparent in 1882, when hundreds of skilled and unskilled workers refused to continue work at the Pratt Mines, the steadily enlarging labyrinth of shafts on the edge of Birmingham. The miners objected to a sharp wage reduction and the company's growing reliance on convict laborers. Rather than relent to the strikers’ demands, the company leased the mines to Comer, who filled them with legions of convicts at his disposal. The strike was crushed.21 The same year, Alabama collected $50,000 in revenue from the sale of convict leases.22

The impact of that relatively brief labor event and its correspondence with payments equal to approximately $860,000 in modern currency, when adjusted for inflation, would be felt for decades. It forged in dramatic fashion the consensus that the coal and steel industry of Birmingham would thrive only with a central reliance on forced labor. That would not change for a half century.

Later in 1882, state inspectors, writing the first candid official assessment of convict camps, said the private prisons were "totally unfit for use, without ventilation, without adequate water supplies, crowded to excess, filthy beyond description." Prisoners were "poorly clothed and fed …excessively and sometimes cruelly punished; there were no hospitals; the sick were neglected; and they were so much intimidated that it was next to impossible to get from them anything touching on their treatment."23

Milner also operated a slave mine at the aptly named Coalburg. The place was no town, but a ramshackle mining camp adjacent to a shaft into a seam of coal that would be exhaustively mined for more than eighty years. The prison at Coalburg, and its nearby successor, Flat Top, were synonymous with the most wretched conditions that could develop in the forced labor mines. The Coalburg prison had no floor or toilets; prisoners were fed only meat and bread. Many men were being held long past the expiration of their ostensible sentences. In the late spring of 1883, eight out of one hundred prisoners died—a rate that the state prison inspector extrapolated to be 30 percent a year.24

Milner had no compunction about his view that black prisoners purchased from the state and from county sheriffs were his to do with as he saw fit. True, they were no longer mortgaged slaves, as were Steve and the blacks he had owned in the 1850s. But he was as much their lord and master as he had been over the African families. Shortly after the war, he warned fellow southerners of the importance of combating the "unthrift, idleness, and weeds" that were certain to follow the emancipation of the slaves.25

Milner became the central figure in an orbit of shrewd but brutal southern industrialists who shared his views on the best means of managing black laborers. Beginning before the Civil War, Milner teamed up with William Hampton Flowers to operate slave-driven timbering operations near Bolling, Alabama. Using mostly hand tools and enormous exertion, the slaves fashioned thousands of crossties for the railroads then under construction across southern Alabama.

After the war, Flowers purchased a half interest in Milner's timber operation. The partnership, Milner, Caldwell & Flowers Lumber Co., built a state-of-the-art sawmill and came to control tens of thousands of acres of prime forestland. From the 1880s through the turn of the century, the company relied on thousands of convict laborers leased from counties and the state of Alabama to produce vast quantities of turpentine and millions of linear feet of cut lumber and crossties.

In the spring of 1883, Milner was made an offer by the entrepreneur behind an ambitious railroad under construction from Atlanta. Milner quickly sold to the Georgia Pacific Railroad part of his Coalburg mine operation and, in an overtly illegal aspect of the transaction, a lot of one hundred black convicts. The buyer of both the mine and the forced laborers was Capt. James W. English, a powerful Atlanta politician who also headed Chattahoochee Brick Company in Atlanta, the biggest and arguably most abusive buyer of forced laborers in Georgia.

In 1883, Alabama's prison inspector, Reginald Dawson, began to visit prisons populated with men convicted of state crimes, and a commission of the state legislature undertook an investigation to ensure that the prisoners were being humanely treated. The moves were made not out of humanitarian concerns but as acts of preservation for the system. In some other states, notably Tennessee, public criticism of barbaric conditions among prison laborers had threatened the entire practice of convict leasing. In Alabama, the system was already proving uniquely well suited to the needs of mine owners, coke oven operators, foundries, and lumber and turpentine camps. The men in charge were committed to preserving the system against any criticism.

Shortly before Milner's transaction flouting the laws that superficially governed Alabama's prison mines, Dawson became "chief inspector" of the state Board of Inspectors of Convicts. He was a South Carolina native, born in 1838 to an illustrious lawyer and planter father. The family moved to Dallas County, Alabama, in 1842, and Dawson studied to become an attorney. A lieutenant in an Alabama infantry regiment during the war, he was wounded and came home in 1864.26

Dawson distinguished himself as one among a small number of southerners who were troubled by the obvious contradictions between the convict leasing laws and the realities of the forced labor system that it spawned. He repeatedly gave officials an unvarnished assessment of the situation, apparently in the sincere belief that with full exposure, the apparatus of Alabama's traffic in African Americans could be reformed.

After becoming chief convict inspector, Dawson visited prison encampments scattered across the state. In addition to examining the destinations of state convicts, a law passed the previous year also allowed state officials to inspect the larger, but even less regulated, county convict system. An early stop was at J. W. Comer's plantation in Barbour County. Dawson described the men held there on misdemeanor charges in a desperate condition, poorly clothed and fed, and "unnecessarily chained and shackled."27

At the Pratt Mines, then also under the management of Comer and his business partner, William McCurdy Dawson observed extremely high death rates. He termed conditions at two drift mines as having "miserable accommodations, unfit for men to be kept in."28 Like Comer, McCurdy was a south Alabama man with a long track record, first in slaves, then in convicts, on his Lowndes County farm. On McCurdy's plantation in Lowndes County, seventy black convicts leased from the state and an unknown number of county prisoners were held in two pens called the upper and lower cells.29 The farm would operate with forced laborers for at least fifty years.30

Despite the conditions and the appalling number of maimed and "disabled men" that Dawson found at the mines operated by Comer, Milner, and the other forced labor entrepreneurs in 1883, there was little he could do. Comer and McCurdy, as well as the Pratt Mines, held binding contracts under which the corporations had effective ownership of two hundred prisoners each.

Dawson wrote repeatedly in his diary during the hot summer of that year that he was "stronger than ever in the conviction that the convicts should not be worked in the mines."31 The inspector also began to write country judges across Alabama urging them to cease the transfer of local prisoners to the desperate mines near Birmingham. Dozens received such letters, including one on September 10, 1883, to Simon O’Neal reporting that prisoners at the Pratt Mines "are not well clothed." He added: "I think the work required of some of the convicts is excessive." Two weeks later, Daw-son wrote R. A. J. Cumlie: "The appalling amt of deaths that have occurred at the mines, both from disease and accidents, the great number of cripples, the men broken down by disease to be found there should convince the public that they should not be forced to incur the augers incident to this sort of work."32

After Dawson inquired into the circumstances of a convict from Lee County being held by Comer and McCurdy at one camp, the inspector realized that although the man had been in custody since 1875—eight years— he wasn't listed in official records as a prisoner. Comer "never reported him," Dawson wrote to the Lee County judge. "Comer and McCurdy have had him near two years…. You have no idea how many such cases I have worked up."

Dawson appealed to Governor Edward A. O’Neal for help. "Convicts have been hired out and lost sight of, others are in possession of contractors and no bond or contract on file. Others have been found in possession of parties different from those to whom hired."33

Dawson's pleas had little effect. By March 1883, twenty-nine counties were leasing their prisoners to mines. Altogether, in excess of four hundred such men were being forced into labor, the vast majority of them because of their inability to pay fines imposed for minor or spurious offenses.34

Similarly, Dawson discovered multiple county prisoners at the Newcastle and Coalburg prison mines owned by Milner who had never been paid for by the company and were never listed on the rolls of prisoners that Milner was required by law to maintain. The benefit of never showing a prisoner on the official registers of convicts was tremendous. The company holding him could ignore its obligation to make monthly payments to the county of the prisoner's arrest. Far more ominously, the prisoner could be held indefinitely. The end effect, by almost any definition, was to reduce the convict to a slave. After a visit to Coalburg in July 1885, Dawson wrote in his diary: "Still a great deal of sickness. There is much dissatisfaction and complaints here. The convicts are demoralized and the management is bad."35

Dawson could never determine how many such cases occurred. He wrote that his investigation never truly "probed to the bottom." Even inspectors such as Dawson rarely considered an even more troubling dimension of the system: that much larger numbers of the prisoners—whether listed on the official registers or not—had committed no real crime.36

A woman named Annie Tucker was convicted of a misdemeanor and sold into the Pratt Mines in 1883. She later testified during a legislative inquiry that she "cooked, washed and ironed at mines."37 At some point that year, P. J. Rogers, an official at the prison who later became sheriff of Jefferson County, so severely whipped Tucker that the Board of Inspectors censured him. Dawson wrote in his diary that Tucker "ran away from Mr. McCurdy's house—was caught and carried to the prison. Col. Bank-head whipped her himself—not severely—After he left, by order of Mr. McCurdy, P. J. Rogers stripped her, had her held down, and inflicted 56 lashes upon her with a heavy strap."38

After a meeting on November 14, 1883, with two white men who had recently visited Comer's Pratt Mines, Dawson wrote in his personal diary: "Disgusted with what they found at shaft—men eating out of coal shovels. Notified Col. Ensley to furnish men things to eat out of—and other necessaries—Reported to Governor the neglect of sick men …and also cruelty."

A week later Dawson visited the Shaft mine himself. "Found things not at all improved—men lousy, filthy and dirty Had no change for near two months—beds scarce and dirty. One very sick man in a cell in a miserable condition."39

The plantation operations of J. W. Comer were no better. After a visit to the Comer farm in Barbour County, Dawson wrote: "Things in bad order. No fireplace in cell. No arrangements for washing … no hospital. Everything filthy—privy terrible—convicts ragged—many barefooted— very heavily ironed."40

Elected officials responded by adopting new rules governing the leasing of convicts. Companies that acquired forced laborers were mandated to provide "clean quarters" and adequate food. Guards were prohibited from using "cruel" or "excessive punishment." The new rules also dictated that if the body of a dead prisoner was not taken by a family member, the company was responsible for an orderly internment.41

Except for the requirements of racial separation, operators of the slave labor camps roundly ignored the rules. Between 1882 and the end of 1883, the number of convicts in the Pratt Mines increased from ninety-two state prisoners and an unknown number of county convicts to more than five hundred slave laborers in its Slope and Shaft mines, about half its total workforce.42 One of Dawson's deputies wrote him in December 1883 that conditions at the Pratt Mines were severely deteriorating. "Most of the Negroes have not had a change of clothing in from three to nine weeks and are as lousy as they can be," wrote Albert T. Henley, citing "the filthy condition of things."43

In 1884, Archey still imprisoned at the Eureka mine, wrote to Dawson decrying the treatment he and other black men continued to receive. "Comer is a hard man. I have seen men come to him with their shirts a solid scab on their back and beg him to help them and he would say let the hide grow back and take if off again. I have seen him hit men 100 and 160 [times] with a ten prong strop, then say they was not whiped. He would go off after an escape man come one day with him and dig his grave the same day.

"We go to cell wet, go to bed wet and arise wet the following morning and evry guard knocking beating yelling Keep in line Jumping Ditches," Archey wrote.44

In 1885, when Dawson personally appealed to Milner to unchain his permanently shackled laborers at the Newcastle mines for some portion of each day or night, Milner reacted contemptuously. "My best and longest mine men," Milner wrote back, "will get away & then ruin my business here."45

For its part, Shelby County, though home to some of Alabama's most glaringly abusive slave mines, moved cautiously, reconsidering each year whether to partake in the profits offered by the new trade in laborers or to stick with working prisoners on the muddy country roads and collapsing bridges across the county. On December 13, 1880, the county commission split the difference, ordering that prisoners convicted of crimes in the following year be hired to an outside labor agent, but that the men be "employed on public works." The labor agent was the firm of Comer & McCurdy

The requirement for prisoners to be used on the public roads was only temporary, however. Late in 1881, the commissioners authorized the probate judge to hire local convicts to "a farm, coal mine or Iron works," with the nearby Shelby Iron Works production facility or Comer's Eureka mines obviously in mind. Immediately the character of law enforcement in the county changed profoundly46

In November of that year, the jail suddenly filled with forty-five prisoners, six charged with burglary, ten accused of carrying a concealed weapon, six for petit larceny, and, notably, a woman named Mollie Stubbs was accused of vagrancy. It was the first use of the old-fashioned "idleness" charge in many years, almost certainly the first since the end of the Civil War. Stubbs was ordered to work forty days at hard labor to pay off 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 officials on prisoner leasing were limiting the revenue that could be generated. The commission named Amos Elliott, the county's best-known and longest-standing storekeeper and justice of the peace, to act as its agent in the management of prisoners. Elliott 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 Elliott 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, Elliott was bound to "scrutinize and enquire into the management and treatment of said Convicts."48

Elliott, already well acquainted from his many years as a justice of the peace with the pecuniary benefits of the Alabama fee system,49 energetically took up the first 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 approved payments to Elliott 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 sheriff, was authorized to receive $173 for having arrested them.50 Like Elliott, the men engaged in the county's trade of forced labor weren't marginal or disreputable figures. The sheriff was a popular elected official. 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 controlled 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 attorney 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 Cottinghams. In August 1865, Smitherman, also a Confederate veteran, had been authorized by the provisional governor of Alabama to give oaths of allegiance 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 specific individual was almost boundless, there was in fact little in the way of meaningful philosophical policy shifts that the new county judge could effect. Which roads and bridges to rebuild after each year's spring downpours, in what order, and by whom among the small coterie of local men who lived primarily off 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 five-hundred-pound load of cotton—the sole goal of most small-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 smallest of criminal charges in the nineteenth century was inconsequential—no more than a dozen a year—the county judge's method of response was virtually unlimited. It was here that the new judge Gardner would make his mark.

Six months after Gardner took office, Bibb County joined the rising tide. Two days after the county's Independence Day celebrations that July, Dave Wilson was charged with assault and battery and the equally 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 sheriff, plus the cost of the court proceeding.53

A few months later Abram Griffin, an itinerant black farmhand from Montgomery, 54 faced charges of carrying a concealed weapon and assault and battery. Guns carried by black men were becoming 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.

Griffin's assault, whatever it was, little interested the Bibb County judge in 1881. He was convicted but fined only $1. On the charge of carrying a weapon, however, the man faced a serious penalty. Unable to pay the court a $50 fine and costs, Griffin 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 still 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 Halloween 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 alleged 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 came time to settle accounts at the end of the year. Whatever the specifics in Milt Cottingham's case, he pleaded not guilty.

Judge Gardner heard testimony on the alleged incident and ruled the former slave before him guilty. He levied a fine of $24. The vast majority of African Americans in the county—or the entire South for that matter— in 1881, given the same outcome, would have faced a Faustian bargain. Twenty-four dollars 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 willing to pay the fine on his behalf.

Milt Cottingham enjoyed a rare advantage. The community of former Cottingham slaves remained sufficiently intact—and had prospered enough during Reconstruction—that Milt's brothers, James and George, appeared on his behalf, with $24 in hand. The black Cottinghams 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. Cottingham.57When the cotton came in later that year, the white Cottingham would have no trouble getting to market.

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