OCCASIONAL PAPERS, NO. 15.

The American Negro Academy.

PEONAGE

BY LAFAYETTE M. HERSHAW

PRICE : : 15 CTS.

WASHINGTON, D. C.: PUBLISHEDBY THE ACADEMY 1915

PEONAGE

BY LAFAYETTE M. HERSHAW

The Negro was kidnapped from theshores of Africa and brought into theWestern Hemisphere at the beginningof the sixteenth century in order tomeet the conditions growing out of anacute labor problem. The greedy andadventurous Spaniard had come tothese shores in quest of gold, and afteryears of experiment he discovered thatthe Indian who lived in the islands andon the coast of the New World, eitherwould not or was not physically able toperform the heavy labor of extractinggold from the mines. To meet hisgreedy quest, it was then necessary tolook elsewhere to find the man whowas feeble enough in will and strong

enough in body to meet the conditionswhich then presented themselves. TheAfrican was that man. It is not thepurpose of these reflections to dealwith the institution of slavery otherthan to point out that what slavery isappears altogether from the point ofview of the one who discusses it. It iscommon nowadays to refer to it as apractical institution by means of whichthe savage African was brought underthe beneficent influences ofChristianity, taught the Englishlanguage, and the joy of intelligentlydirected labor. But before the beginningof the institution as a means ofmeeting the needs of work, the moralistconsidered it as the sum of all villanies,

the reformer termed it the negation ofall right. But the economist looks at itas a system of labor, and the historianand philosopher, as a step in theprogress of the human race from thetime when savages were put to deathwhen taken in battle to the time whenmen realized that they could eat breadby the sweat of other men's faces.

It is a remarkable concurrence ofhistorical facts that the opening of thePanama Canal will be precisely the fourhundredth anniversary of theintroduction of Negro slavery into theWestern Hemisphere. Most of thosecenturies were passed without anyalleviation of the condition of the

chattel slave. The Liberal andRevolutionary movements of theeighteenth and nineteenth centuriesbrought about the downfall of chattelslavery as a system of labor in thecivilized world. Immediately succeedingthe emancipation of the slave fromchattelism, slavery reappeared in a newform. The former slave-holding statesenacted a series of so-called "LaborLaws" intended to apply exclusively tothe recently emancipated slaves, whichat that time so outraged publicsentiment that the American nation justemerged from the great war, intendingto destroy every vestige of slavery andits incidents, conferred upon the Negrothe common and universal legal rights

which pertained to white menthroughout the English speaking world.It was evidently the thought andpurpose of the men of that day to curein the light of the formulas andpromises of their fundamental chartersthe curse that had been a sore tocivilization for years. And for a time itlooked as though they had done so, butof late years there has grown up a seriesof laws and court decisions givingdistinct recognition to the fact of Race,and in spite of the constitutionalguaranties, differentiating at least in thematter of the enjoyment of rights asbetween white men and black men.This paper is concerned merely withthose distinctive laws which relate to

labor.

In all English speaking countries thefreedom of labor has been afundamental principle of the law, andthe freedom of contract has beenabsolutely unlimited and unhampered,as was also the right to abrogate or todisregard the contract of labor on thepart of the laborer, there being noremedy of specific performance againsthim. The failure to observe the contractof employment was never, untilrecently, regarded as a criminal offense,and the only remedy that the employerhad against the employee who willfullyor who for good reason or for noreason refused to live up to his contract

was an action for damages sustained.Of late years there has grown up in theformer slave-holding states of theSouth a series of laws which abrogateall this well-known and time-honoredcommon law principle.

Does peonage exist in any part of theUnited States to-day The question isanswered both in the affirmative and inthe negative. Those who deny theexistence of peonage assert that merelythe voluntary or involuntary service orlabor of a person in payment of a debtor obligation is not peonage; that it isnot the system of peonage as practicedin Spanish-American countries and inMexico; that there is in this country

nothing resembling the Spanish orMexican peonage system. It is probablytrue that there are no laws on statutebooks which resemble the laws underwhich peonage is practiced in Mexico,and under which it was practiced inNew Mexico and Arizona before theybecame parts of the United States. Thethirteenth amendment to theConstitution of the United Statesforbids such laws, and certain acts ofCongress have been passed whichrender that amendment effective. It istherefore to be presumed that no Statewhich desired to establish a system offorced labor would pass a law which,on its face, would be in violation of thethirteenth amendment, or of the laws

of Congress passed in pursuance of it.The counterfeiter has before him thetask of making false money to look asmuch like genuine money as possible.The maker of laws violative offundamental rights has before him thetask of doing the forbidden thing in away which will as nearly as possibleconceal the fact that it has been done.What peonage is, has been defined bythe United States Supreme Court.

Justice Brewer said: "It may be definedas a status or condition of compulsoryservice based upon the indebtedness ofthe peon to the master. The basal fact isindebtedness. One fact existsuniversally, all were indebted to their

masters. This was the cord by whichthey seemed bound to their masters'service." Therefore, wherever we havecompulsory service for debt, we havepeonage, it matters not by what methodthe result is attained. There are to-dayin certainly six states, and probably inten, in which the institution of slaveryformerly existed, laws which make itpossible to compel men to renderservice against their will, and that toowhen they have committed no actwhich, outside of those States wouldbe held to be a crime in any English-speaking community.

For convenience, these laws may beclassed under at least five heads:

Contracts of employment, enticementof laborers to quit their employers,violation of a contract with a surety byone convicted of a misdemeanor, thelaws of vagrancy, and the laws relatingto immigrant agents.

The laws relating to contracts ofemployment are to be found on thestatute books of six States Alabama,Florida, Georgia, Mississippi, NorthCarolina, and South Carolina. Theselaws are very similar in theirphraseology and in the penaltiesattached to their violation in all ofthese States. The Alabama law, whichhas recently been declaredunconstitutional by the Supreme Court

of the United States, may serve as anexample. It provides, in short, that anyperson who enters into a contract inwriting to perform any service foranother and thereby obtains money orother personal property from suchperson with intent to defraud theperson, and who leaves his servicewithout performing the act orrefunding the money or goods, shall beguilty of a misdemeanor; or, that anyperson who in writing makes a contractfor the rent of land and obtains moneyor personal property from the landlordwith intent to deceive him and leaveswithout performing the service,refunding the money, or paying for theproperty, shall be guilty of a

misdemeanor. The penalty for each ofthese offenses is a fine not exceeding$300, and in default of payment,imprisonment for a period of notexceeding one year. This Alabamastatute was later amended, because itwas found that there was difficulty inproving the intent. The statute asamended was to the effect that thefailure of any person who enters intosuch contracts to perform the service,or to cultivate the land, or refund themoney, or pay for the goods, shall beprima facie evidence of the intent toinjure his employer or landlord, or todefraud him. These contracts areusually entered into under conditionswhich render it impossible for the

employee to overcome what the statutesays shall be prima facie evidence. TheSupreme Court of Alabama hasdecided that an accused person shallnot be allowed to testify as to hisuncommunicated motives, purposes, orintentions, to rebut a statutorypresumption. Taking counsel of thisdecision employers who make contractswith laborers are cautious that thereshall be present at the time of makingthe contract only the employer and theemployee. When the contract is made,the employer advances the laborer asum of money, or goods, or supplies,which become the consideration for thecontract, and the laborer agrees to workfor such person for a fixed period at a

certain sum per month or per year. In acase which went through all the courts,State and Federal, the laborer agreed towork for a year at twelve dollars permonth. At the time of entering into thecontract he received fifteen dollars inmoney, and the employer agreed to payhim the sum of ten dollars andseventy-five cents per month, thusdeducting a dollar and a quarter eachmonth in payment of the fifteen dollarsadvanced at the making of the contract.The employee, after having renderedservice for more than a month, left hisemployer. He was afterwards indictedand convicted of failing to perform hiscontract and was sentenced by thecourt to pay a fine of thirty dollars and

the costs, and in default thereof to hardlabor "for twenty days in lieu of saidfine and one hundred and sixteen dayson account of said costs." It can bereadily seen that if the laborer in thiscase had worked eleven months, hewould have owed the employer a dollarand a quarter, and if he had left himmight be arrested, indicted, andconvicted and be made to serve at hardlabor for at least one hundred andsixteen days, the cost of prosecuting acase involving the failure to pay onedollar and a quarter being the same asthe cost of a prosecution involving anylarger sum. The decision of theSupreme Court of the United States,rendered January 3, 1911, declares in

effect legislation of this kind to be inviolation of the thirteenth amendmentto the Constitution. It should beobserved, however, in this connectionthat when the decision was renderedthere were two vacancies in the court,and that two of the seven membersthen sitting dissented from the opinionof the court, Mr. Justice Holmes andMr. Justice Lurton, Mr. Justice Holmesrendering the dissenting opinion. Insumming up, he said: "That a falserepresentation expressed or implied atthe time of making a contract of laborthat one intends to perform it, andthereby obtaining an advance may bedeclared a case of fraudulentlyobtaining money, as well as any other,

that if made a crime it may be punishedlike any other crime, and that anunjustified departure from thepromised service without repaymentmay be declared a sufficient cause to goto the jury for their judgment, allwithout in any way infringing thethirteenth amendment or the statutesof the United States." The importanceof this dissenting opinion is enhancedby the reflection that if all the vacanciesin the court had been filled at the timethere might have been four concurringin the dissenting opinion rather thantwo, and even as it is, the opinion beingthat of a divided court is a basis for thefear that at some future when the samequestion may be presented to the court,

constituted differently from what itnow is, the constitutionality of thesestatutes may be upheld.

Another form in which peonage ispracticed is by the passage of actsmaking it unlawful to entice laborers toleave their employers or landlords, or toemploy persons who have left theiremployers without fulfilling theircontracts. Such laws are found inAlabama, Arkansas, Florida, Georgia,Kentucky, Louisiana, Mississippi,North Carolina, South Carolina, andTennessee. It will be observed that allof these States are former slave-holdingStates.

A third law under which peonage ispracticed, and which probably is themost fruitful legal source is to befound in Alabama alone. It providesthat when any person who has beenconvicted of a misdemeanor, signs awritten contract in open courtapproved by the judge of the court inconsideration of another personbecoming his surety on a confession ofjudgment for the fine and costs, agreesto perform any service for such personand afterwards fails or refuses toperform the service, on conviction willbe fined not less than the amount ofdamages which the party contractingwith him has suffered, and not morethan five hundred dollars. The statute

provides that these contracts withsureties may be filed for record in theoffice of the judge of probate in thecounty in which the confession ofjudgment was had. There is anadditional section which provides forsimilar punishment in the cases ofpersons convicted of a misdemeanoror violation of a city ordinance, whomakes similar contracts before arecorder or mayor.

The laws of vagrancy are also used as ameans of reducing persons to acondition of peonage. In many of theSouthern States the vagrancy laws areexceedingly drastic, and under theirenforcement by the courts almost any

person may be convicted as a vagrant,and being unable to pay his fine or togive surety for his future good conductmay enter into a contract, with one whodoes pay his fine or become his surety,to work for him, and if he does notperform the labor may be prosecutedfor violating this contract, and for thesecond offense may enter into acontract for additional service for anextended period, and thus the restraintof his liberty may be almostinterminable.

The law relating to immigrant agentsmakes it necessary to obtain a license ineach county of the State in which thecalling is carried on. This license is

made so high as to be practicallyprohibitive. Carrying on the occupationof immigrant agent without a license isa misdemeanor, the penalty for which isa fine from five hundred to fivethousand dollars, and imprisonmentfor a period of not exceeding one year.Laws relating to immigrant agents arefound in Alabama, Florida, Georgia,North Carolina, and South Carolina.

In addition to these, other laws,perfectly proper on their face, areperverted to reduce persons to acondition of peonage, among whichare false pretense or false promise laws,absconding debtor laws, board-billlaws, and in fact every ordinance,

regulation, or statute defining amisdemeanor or crime. It can readily beseen that if the States may by legislativeenactment define any act to be a crimethe thirteenth amendment may becomein time a mere nullity.

In a report by Hon. Charles W. Russell,Assistant Attorney General, to theAttorney General, in 1908, appears thislanguage:

"I have no doubt from myinvestigations and experiences that thechief support of peonage is thepeculiar system of State laws prevailingin the South, intended evidently tocompel services on the part of the

workingman. From the usual conditionof the great mass of laboring menwhere these laws are enforced, topeonage is but a step at most. In fact, itis difficult to draw a distinctionbetween the condition of a man whoremains in service against his will,because the State has passed a certainlaw under which he can be arrested andreturned to work, and the condition ofa man on a nearby farm who is actuallymade to stay at work by arrest andactual threats of force under the samelaw. The actual spoken threat of anindividual employer who makes hislaborer stay at work against his will byfear of the chain gang, and the threatof the State to send him to the chain

gang whenever his employer chooses tohave him arrested, are the same in resultand do not seem to me very different inany other way."

While the principal sources of thepractice of peonage are the laws justreferred to, yet it has existed and doesexist without law. The condition of thecolored man in this country ispractically that of an outlaw. He isscarcely thought of as having rights. Heis distinctly told not to insist upon hisrights, but to do his duty; that rightswill come as the result of duty wellperformed. This is in effect to say thelaws, the customs, the institutions,which protect and defend other men

are not to be invoked by the Negrowhen in his opinion he needs them. Alarge group of men who are lookedupon after this fashion is at the mercyof any group of men who enjoy in fullvigor all that the institutions andgovernment of their country stand for.Therefore, it is not unusual to find that,without any law at all, large numbers oflaborers are restrained of their liberty inquarters and in stockades, guarded bymen who carry guns and deadlyweapons, and though having beenconvicted of no wrongdoing, are keptin the condition of ordinary criminals.The report of the Attorney General forthe year 1907 contains a list of eighty-three complaints of peonage pending

in the Department of Justice. Thesecomplaints come from every one of theformer slave-holding States, with theexception of Missouri, and since thepublication of this report cases ofpeonage have been found in that State.In view of the testimony afforded bythe laws on the statute books of theStates, the decisions of the courts, thereports of the Department of Justice,and the testimony of persons whosecharacter is a warrant of itstruthfulness, the practice of peonage isexactly coterminous with that portionof the territory of the United States inwhich the institution of chattel slaveryformerly existed. When we consider thehistoric fact that the public opinion of

the States embraced in this territory hasnever considered Negroes as havingrights which any one is bound torespect, and that this public opinionhas been active in opposing theconferring of all legal rights uponNegroes, and has never ceased to exertitself to divest them of such rights ashave been given them, it can not bewondered at that, while slavery nolonger exists in this country as a legalinstitution, it does exist in the opinion,the sentiment, and the practices of thepeople. It is difficult to determine howextensive the practice of peonage maybe or how many victims may be held inits prison house. On this point,Assistant Attorney General Russell says

"We have discovered cases of peonageand others have been brought to ourattention, we have examined into manyand obtained indictments andconvictions, but how many cases are inexistence is the same kind of a questionas though the crime were pensionfraud, or counterfeiting, or public landfraud, or fraud on the revenue. Wherewe have found several cases we mayconclude that there are, or have been,or are likely to be others, but this isspeculation. Sometimes we feelconfident that our pounding away fornearly two years has frightened intoinactivity those who were practicingpeonage in the same State with thepersons convicted and sentenced. We

hear now and then of workmen beingturned loose to the right and to the leftof us when prosecutions are going on,but while it would be discouraging tothink that we have not thus reduced theevil to much smaller dimensions, Iregret to say that cases are still beingdiscovered or reported in variousdirections."

The real foundation of peonage, afterall, as it relates to the Negro is therefusal to regard him as a man havingrights as other men have them. So farhas wrong, and injustice, andoppression gone that not only is theNegro outside of the consideration ofthe law of the land, but practically

outside of the humane and kindlyregard of a majority of the white racein the United States. Not only are lawsperverted and given a special twist andinterpretation in cases where the Negrois a party to litigation, but even wordsin ordinary use lose their acceptedmeaning when applied to him. Theword "duty," for instance, has not ascintilla of moral significance in itwhen used about or spoken to a Negro.It has purely an industrial andeconomic meaning, which may beexpressed in the injunction, "Servants,obey your masters." The word"kindness," which implies one of thenoblest traits of human nature, whenapplied to a Negro means simply that

his treatment shall not be so harsh as tocause people who are yet included inthe category of decent, to wince andprotest. The denial of right to theNegro has been progressive in the pastforty years. First, he was denied theright to vote, and we were told if hewould only hold that right in abeyancethat he might enjoy other rights in fullermeasure. Many, under a misconceptionof the facts, accepted this view, butsince the denial of the right to voteother rights have been impaired. Theright to education in its broadest andmost comprehensive sense is nowpractically denied him everywhere, andif not denied the wisdom of hisreceiving it is seriously questioned. The

right to hold property and live in itwherever he may purchase it is deniedand restricted. The right to work atwhatever occupation he may be fitted isdenied, and his opportunities forearning a living are confined tonarrower and narrower limits each year.Even the fundamental right of a slaveto petition when the yoke is galling isdenied him, and when he wouldassemble to formulate just complaintsin a way protected by the law of theland, he is accused of whining and ofstirring up bad feeling between theraces, and so the list might be extendedindefinitely. The contest for the futuremust be a constant effort to educatepublic opinion to the point where it

will concede to the Negro inalienablerights: The right to vote, the right to aneducation in all that the term implies,the right to employment in alloccupations, the right to make ofhimself and of his people and of hisneighbors all that they may becomeunder the most favored conditions. Inshort, to use the phrase of Kipling, theideal sought is, "Leave to live, by noman's leave, underneath the law."

The effect of the decision of theSupreme Court of the United States inthe Bailey case is to render null and ofno effect all of these labor laws whicheither directly or indirectly resulted incompulsory slavery. In the Bailey case

the Supreme Court held that althoughthe State statute in terms appeared topunish fraud, the inevitable purpose isto punish for failure to performcontracts for labor, thus compellingsuch performances and it violates thethirteenth amendment to theconstitution and is unconstitutional.And again the further principle wasannounced that a constitutionalprohibition can not be transgressedindirectly by court or statutorypresumption any more than by directenactment. The Court said: "TheThirteenth Amendment prohibits thecontrol by coercion of the personalservices of one man for the benefit ofanother and that the Federal Penal Act

is violated by any State resolutionwhich seeks to compel the services oflabor by making it a crime to fail andrefuse to perform contractemployment!" This decision renderedby Mr. Justice Hughes and dissentedfrom by Mr. Justice Holmes, an ex-Union soldier, and Mr. Justice Lurton,an ex-Confederate soldier, goes as far asany decision in upholding the spirit andintent of the Thirteenth Amendment asany decision ever rendered by this, thehighest Court of the nation. However,this interpretation goes no further thanthe moral and physical fact ofcompelling the service of labor. Slaveryand involuntary servitude according tothe construction of the Court consist

only in compelling one to work againsthis will and does not relate to thethousand and one facts of the humanlife by which one man might, thoughfree in theory, be made subservient toanother man. For instance, this sameCourt decided, in a case brought upfrom Arkansas where a Negro had,through the conspiracy of a number ofwhite men been prevented frompursuing his occupation as alumberman in a lumber district of thatState, that it had no jurisdiction in thepremises; that the act involved did notraise a Federal question; that the Negrowas not the ward of the nation but anequal citizen, one who had accepted thegarb of citizenship and discarded the

robe of wardship and thereby restrictedhimself to pursue the remedies forwrongs inflicted by individuals in Statecourts although it was argued to thecourt that to prevent a man eitherdirectly or indirectly from pursuing acalling or profession was as thoroughlyto enslave him as to force him to laboragainst his will.

Transcriber's Notes:

The following misprints have beencorrected: "evdence" corrected to"evidence" (page 7) "State" corrected to"States" (page 8) "insitution" corrected

to "institution" (page 11)

THE END