Slavery by Another Name (13 page)

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 Cot ingham farm. Old Elisha's former slaves

separated into three groups. The rst, beginning with young Albert

Cot ingham, 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 Cot ingham slaves—chose to remain close by the

old master, likely stil 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 Cot inham , 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 mulat o line

boy, Caesar, remained on the farm. Likely Green's mulat o line

connected him directly to the white Cot inghams, but no record

survives to indicate whether that was so. Another slave father to

remain on the place was Je Cot ingham, forty-eight, who

continued to spel 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.3 Also 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 Cot ingham Loop, at the edge of the

Six Mile set lement around which the lives of al the Cot inghams

had come to orbit, Scip and the third group of former slaves set led

themselves in a life overshadowed by their former enslavement but

clearly distinct from the control ed lives they had formerly led.

At the center of those former slaves remained Scipio, stil

defiantly insistent that his birth as an African and the African origins

of his mother and father be ful y recorded whenever the census

taker or another government o cial inquired as to his provenance.

He took the name Cot inham.

Six Mile had the vague makings of a real town, with a smal

school and a weekly newspaper that boasted of a cluster of homes,

two stores, and a sawmil . On one boundary of the set lement lived

George Cot inham, now forty- ve, and next door lived Henry,

twenty-two years old, and Mary, with the lit le 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 ve children they had under the age of

thirty-eight years, and the ve children they had under the age of

fourteen. The e ort by General Gorgas to rebuild the Brier eld

furnaces had col apsed, and the weary Confederate industrialist

turned over the operation to another ex-rebel o cer turned

entrepreneur.

Scipio worked under his supervision at the Bibb furnace where

he had spent so much of the wartime years, stil laboring at the task

Elisha had sent him to learn in the e ort to save the Confederacy.

He traveled daily to the furnaces, several miles away, usual y in the

company of four much younger black men who boarded in a smal

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 rst time they were truly autonomous of Elisha Cot ingham

and his kin. How long such black men in the post-emancipation

South could remain so would become the de ning 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 sherif .

This was a new capacity for local law enforcement o cers, and

the smal circles of elected o cials who also played a part in the

South's criminal and civil justice systems. Prior to the Civil War, al

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 col ections and

disbursements, primarily for repairs to bridges, maintenance of the

courthouse, and operation of a simple jail. The sheri , also chosen

by the people, usual y spent far more time serving civil warrants

and foreclosing property for unpaid debts than in the enforcement

and foreclosing property for unpaid debts than in the enforcement

of criminal statutes. The arbiter of most minor legal disputes and

al eged crimes would be a justice of the peace, normal y a local

man appointed by the governor to represent law and government

in each "beat" in the state. In an era of exceedingly di cult

transportation, beats were tiny areas of jurisdiction, often limited to

one smal 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 sheri s and their deputies

received no regular salaries. Instead, the law enforcement o cers,

justices of the peace, certain court o cials, and any witnesses who

testi ed against a defendant were compensated primarily from

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