Title: Peonage
Author: Hershaw, Lafayette M., 1863-1945
Language: English
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  OCCASIONAL PAPERS, NO. 15.

  The American Negro Academy.


  PEONAGE

  --BY--
  LAFAYETTE M. HERSHAW


  PRICE  :  :  15 CTS.

  WASHINGTON, D. C.:
  PUBLISHED BY THE ACADEMY
  1915



PEONAGE

BY LAFAYETTE M. HERSHAW


The Negro was kidnapped from the shores of Africa and brought into the
Western Hemisphere at the beginning of the sixteenth century in order to
meet the conditions growing out of an acute labor problem. The greedy and
adventurous Spaniard had come to these shores in quest of gold, and after
years of experiment he discovered that the Indian who lived in the islands
and on the coast of the New World, either would not or was not physically
able to perform the heavy labor of extracting gold from the mines. To meet
his greedy quest, it was then necessary to look elsewhere to find the man
who was feeble enough in will and strong enough in body to meet the
conditions which then presented themselves. The African was that man. It
is not the purpose of these reflections to deal with the institution of
slavery other than to point out that what slavery is appears altogether
from the point of view of the one who discusses it. It is common nowadays
to refer to it as a practical institution by means of which the savage
African was brought under the beneficent influences of Christianity,
taught the English language, and the joy of intelligently directed labor.
But before the beginning of the institution as a means of meeting the
needs of work, the moralist considered it as the sum of all villanies, the
reformer termed it the negation of all right. But the economist looks at
it as a system of labor, and the historian and philosopher, as a step in
the progress of the human race from the time when savages were put to
death when taken in battle to the time when men realized that they could
eat bread by the sweat of other men's faces.

It is a remarkable concurrence of historical facts that the opening of the
Panama Canal will be precisely the four hundredth anniversary of the
introduction of Negro slavery into the Western Hemisphere. Most of those
centuries were passed without any alleviation of the condition of the
chattel slave. The Liberal and Revolutionary movements of the eighteenth
and nineteenth centuries brought about the downfall of chattel slavery as
a system of labor in the civilized world. Immediately succeeding the
emancipation of the slave from chattelism, slavery reappeared in a new
form. The former slave-holding states enacted a series of so-called "Labor
Laws" intended to apply exclusively to the recently emancipated slaves,
which at that time so outraged public sentiment that the American nation
just emerged from the great war, intending to destroy every vestige of
slavery and its incidents, conferred upon the Negro the common and
universal legal rights which pertained to white men throughout the English
speaking world. It was evidently the thought and purpose of the men of
that day to cure in the light of the formulas and promises of their
fundamental charters the curse that had been a sore to civilization for
years. And for a time it looked as though they had done so, but of late
years there has grown up a series of laws and court decisions giving
distinct recognition to the fact of Race, and in spite of the
constitutional guaranties, differentiating at least in the matter of the
enjoyment of rights as between white men and black men. This paper is
concerned merely with those distinctive laws which relate to labor.

In all English speaking countries the freedom of labor has been a
fundamental principle of the law, and the freedom of contract has been
absolutely unlimited and unhampered, as was also the right to abrogate or
to disregard the contract of labor on the part of the laborer, there being
no remedy of specific performance against him. The failure to observe the
contract of employment was never, until recently, regarded as a criminal
offense, and the only remedy that the employer had against the employee
who willfully or who for good reason or for no reason refused to live up
to his contract was an action for damages sustained. Of late years there
has grown up in the former slave-holding states of the South a series of
laws which abrogate all this well-known and time-honored common law
principle.

Does peonage exist in any part of the United States to-day? The question
is answered both in the affirmative and in the negative. Those who deny
the existence of peonage assert that merely the voluntary or involuntary
service or labor of a person in payment of a debt or obligation is not
peonage; that it is not the system of peonage as practiced in
Spanish-American countries and in Mexico; that there is in this country
nothing resembling the Spanish or Mexican peonage system. It is probably
true that there are no laws on statute books which resemble the laws under
which peonage is practiced in Mexico, and under which it was practiced in
New Mexico and Arizona before they became parts of the United States. The
thirteenth amendment to the Constitution of the United States forbids such
laws, and certain acts of Congress have been passed which render that
amendment effective. It is therefore to be presumed that no State which
desired to establish a system of forced labor would pass a law which, on
its face, would be in violation of the thirteenth amendment, or of the
laws of Congress passed in pursuance of it. The counterfeiter has before
him the task of making false money to look as much like genuine money as
possible. The maker of laws violative of fundamental rights has before him
the task of doing the forbidden thing in a way which will as nearly as
possible conceal the fact that it has been done. What peonage is, has been
defined by the United States Supreme Court.

Justice Brewer said: "It may be defined as a status or condition of
compulsory service based upon the indebtedness of the peon to the master.
The basal fact is indebtedness. One fact exists universally, all were
indebted to their masters. This was the cord by which they seemed bound to
their masters' service." Therefore, wherever we have compulsory service
for debt, we have peonage, it matters not by what method the result is
attained. There are to-day in certainly six states, and probably in ten,
in which the institution of slavery formerly existed, laws which make it
possible to compel men to render service against their will, and that too
when they have committed no act which, outside of those States would be
held to be a crime in any English-speaking community.

For convenience, these laws may be classed under at least five heads:
Contracts of employment, enticement of laborers to quit their employers,
violation of a contract with a surety by one convicted of a misdemeanor,
the laws of vagrancy, and the laws relating to immigrant agents.

The laws relating to contracts of employment are to be found on the
statute books of six States--Alabama, Florida, Georgia, Mississippi, North
Carolina, and South Carolina. These laws are very similar in their
phraseology and in the penalties attached to their violation in all of
these States. The Alabama law, which has recently been declared
unconstitutional by the Supreme Court of the United States, may serve as
an example. It provides, in short, that any person who enters into a
contract in writing to perform any service for another and thereby obtains
money or other personal property from such person with intent to defraud
the person, and who leaves his service without performing the act or
refunding the money or goods, shall be guilty of a misdemeanor; or, that
any person who in writing makes a contract for the rent of land and
obtains money or personal property from the landlord with intent to
deceive him and leaves without performing the service, refunding the
money, or paying for the property, shall be guilty of a misdemeanor. The
penalty for each of these offenses is a fine not exceeding $300, and in
default of payment, imprisonment for a period of not exceeding one year.
This Alabama statute was later amended, because it was found that there
was difficulty in proving the intent. The statute as amended was to the
effect that the failure of any person who enters into such contracts to
perform the service, or to cultivate the land, or refund the money, or pay
for the goods, shall be prima facie evidence of the intent to injure his
employer or landlord, or to defraud him. These contracts are usually
entered into under conditions which render it impossible for the employee
to overcome what the statute says shall be prima facie evidence. The
Supreme Court of Alabama has decided that an accused person shall not be
allowed to testify as to his uncommunicated motives, purposes, or
intentions, to rebut a statutory presumption. Taking counsel of this
decision employers who make contracts with laborers are cautious that
there shall be present at the time of making the contract only the
employer and the employee. When the contract is made, the employer
advances the laborer a sum of money, or goods, or supplies, which become
the consideration for the contract, and the laborer agrees to work for
such person for a fixed period at a certain sum per month or per year. In
a case which went through all the courts, State and Federal, the laborer
agreed to work for a year at twelve dollars per month. At the time of
entering into the contract he received fifteen dollars in money, and the
employer agreed to pay him the sum of ten dollars and seventy-five cents
per month, thus deducting a dollar and a quarter each month in payment of
the fifteen dollars advanced at the making of the contract. The employee,
after having rendered service for more than a month, left his employer. He
was afterwards indicted and convicted of failing to perform his contract
and was sentenced by the court to pay a fine of thirty dollars and the
costs, and in default thereof to hard labor "for twenty days in lieu of
said fine and one hundred and sixteen days on account of said costs." It
can be readily seen that if the laborer in this case had worked eleven
months, he would have owed the employer a dollar and a quarter, and if he
had left him might be arrested, indicted, and convicted and be made to
serve at hard labor for at least one hundred and sixteen days, the cost of
prosecuting a case involving the failure to pay one dollar and a quarter
being the same as the cost of a prosecution involving any larger sum. The
decision of the Supreme Court of the United States, rendered January 3,
1911, declares in effect legislation of this kind to be in violation of
the thirteenth amendment to the Constitution. It should be observed,
however, in this connection that when the decision was rendered there were
two vacancies in the court, and that two of the seven members then sitting
dissented from the opinion of the court, Mr. Justice Holmes and Mr.
Justice Lurton, Mr. Justice Holmes rendering the dissenting opinion. In
summing up, he said: "That a false representation expressed or implied at
the time of making a contract of labor that one intends to perform it, and
thereby obtaining an advance may be declared a case of fraudulently
obtaining money, as well as any other, that if made a crime it may be
punished like any other crime, and that an unjustified departure from the
promised service without repayment may be declared a sufficient cause to
go to the jury for their judgment, all without in any way infringing the
thirteenth amendment or the statutes of the United States." The importance
of this dissenting opinion is enhanced by the reflection that if all the
vacancies in the court had been filled at the time there might have been
four concurring in the dissenting opinion rather than two, and even as it
is, the opinion being that of a divided court is a basis for the fear that
at some future when the same question may be presented to the court,
constituted differently from what it now is, the constitutionality of
these statutes may be upheld.

Another form in which peonage is practiced is by the passage of acts
making it unlawful to entice laborers to leave their employers or
landlords, or to employ persons who have left their employers without
fulfilling their contracts. Such laws are found in Alabama, Arkansas,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee. It will be observed that all of these States are
former slave-holding States.

A third law under which peonage is practiced, and which probably is the
most fruitful legal source is to be found in Alabama alone. It provides
that when any person who has been convicted of a misdemeanor, signs a
written contract in open court approved by the judge of the court in
consideration of another person becoming his surety on a confession of
judgment for the fine and costs, agrees to perform any service for such
person and afterwards fails or refuses to perform the service, on
conviction will be fined not less than the amount of damages which the
party contracting with him has suffered, and not more than five hundred
dollars. The statute provides that these contracts with sureties may be
filed for record in the office of the judge of probate in the county in
which the confession of judgment was had. There is an additional section
which provides for similar punishment in the cases of persons convicted of
a misdemeanor or violation of a city ordinance, who makes similar
contracts before a recorder or mayor.

The laws of vagrancy are also used as a means of reducing persons to a
condition of peonage. In many of the Southern States the vagrancy laws are
exceedingly drastic, and under their enforcement by the courts almost any
person may be convicted as a vagrant, and being unable to pay his fine or
to give surety for his future good conduct may enter into a contract, with
one who does pay his fine or become his surety, to work for him, and if he
does not perform the labor may be prosecuted for violating this contract,
and for the second offense may enter into a contract for additional
service for an extended period, and thus the restraint of his liberty may
be almost interminable.

The law relating to immigrant agents makes it necessary to obtain a
license in each county of the State in which the calling is carried on.
This license is made so high as to be practically prohibitive. Carrying on
the occupation of immigrant agent without a license is a misdemeanor, the
penalty for which is a fine from five hundred to five thousand dollars,
and imprisonment for a period of not exceeding one year. Laws relating to
immigrant agents are found in Alabama, Florida, Georgia, North Carolina,
and South Carolina.

In addition to these, other laws, perfectly proper on their face, are
perverted to reduce persons to a condition of peonage, among which are
false pretense or false promise laws, absconding debtor laws, board-bill
laws, and in fact every ordinance, regulation, or statute defining a
misdemeanor or crime. It can readily be seen that if the States may by
legislative enactment define any act to be a crime the thirteenth
amendment may become in time a mere nullity.

In a report by Hon. Charles W. Russell, Assistant Attorney General, to the
Attorney General, in 1908, appears this language:

"I have no doubt from my investigations and experiences that the chief
support of peonage is the peculiar system of State laws prevailing in the
South, intended evidently to compel services on the part of the
workingman. From the usual condition of the great mass of laboring men
where these laws are enforced, to peonage is but a step at most. In fact,
it is difficult to draw a distinction between the condition of a man who
remains in service against his will, because the State has passed a
certain law under which he can be arrested and returned to work, and the
condition of a man on a nearby farm who is actually made to stay at work
by arrest and actual threats of force under the same law. The actual
spoken threat of an individual employer who makes his laborer stay at work
against his will by fear of the chain gang, and the threat of the State to
send him to the chain gang whenever his employer chooses to have him
arrested, are the same in result and do not seem to me very different in
any other way."

While the principal sources of the practice of peonage are the laws just
referred to, yet it has existed and does exist without law. The condition
of the colored man in this country is practically that of an outlaw. He is
scarcely thought of as having rights. He is distinctly told not to insist
upon his rights, but to do his duty; that rights will come as the result
of duty well performed. This is in effect to say the laws, the customs,
the institutions, which protect and defend other men are not to be invoked
by the Negro when in his opinion he needs them. A large group of men who
are looked upon after this fashion is at the mercy of any group of men who
enjoy in full vigor all that the institutions and government of their
country stand for. Therefore, it is not unusual to find that, without any
law at all, large numbers of laborers are restrained of their liberty in
quarters and in stockades, guarded by men who carry guns and deadly
weapons, and though having been convicted of no wrongdoing, are kept in
the condition of ordinary criminals. The report of the Attorney General
for the year 1907 contains a list of eighty-three complaints of peonage
pending in the Department of Justice. These complaints come from every one
of the former slave-holding States, with the exception of Missouri, and
since the publication of this report cases of peonage have been found in
that State. In view of the testimony afforded by the laws on the statute
books of the States, the decisions of the courts, the reports of the
Department of Justice, and the testimony of persons whose character is a
warrant of its truthfulness, the practice of peonage is exactly
coterminous with that portion of the territory of the United States in
which the institution of chattel slavery formerly existed. When we
consider the historic fact that the public opinion of the States embraced
in this territory has never considered Negroes as having rights which any
one is bound to respect, and that this public opinion has been active in
opposing the conferring of all legal rights upon Negroes, and has never
ceased to exert itself to divest them of such rights as have been given
them, it can not be wondered at that, while slavery no longer exists in
this country as a legal institution, it does exist in the opinion, the
sentiment, and the practices of the people. It is difficult to determine
how extensive the practice of peonage may be or how many victims may be
held in its prison house. On this point, Assistant Attorney General
Russell says "We have discovered cases of peonage and others have been
brought to our attention, we have examined into many and obtained
indictments and convictions, but how many cases are in existence is the
same kind of a question as though the crime were pension fraud, or
counterfeiting, or public land fraud, or fraud on the revenue. Where we
have found several cases we may conclude that there are, or have been, or
are likely to be others, but this is speculation. Sometimes we feel
confident that our pounding away for nearly two years has frightened into
inactivity those who were practicing peonage in the same State with the
persons convicted and sentenced. We hear now and then of workmen being
turned loose to the right and to the left of us when prosecutions are
going on, but while it would be discouraging to think that we have not
thus reduced the evil to much smaller dimensions, I regret to say that
cases are still being discovered or reported in various directions."

The real foundation of peonage, after all, as it relates to the Negro is
the refusal to regard him as a man having rights as other men have them.
So far has wrong, and injustice, and oppression gone that not only is the
Negro outside of the consideration of the law of the land, but practically
outside of the humane and kindly regard of a majority of the white race in
the United States. Not only are laws perverted and given a special twist
and interpretation in cases where the Negro is a party to litigation, but
even words in ordinary use lose their accepted meaning when applied to
him. The word "duty," for instance, has not a scintilla of moral
significance in it when used about or spoken to a Negro. It has purely an
industrial and economic meaning, which may be expressed in the injunction,
"Servants, obey your masters." The word "kindness," which implies one of
the noblest traits of human nature, when applied to a Negro means simply
that his treatment shall not be so harsh as to cause people who are yet
included in the category of decent, to wince and protest. The denial of
right to the Negro has been progressive in the past forty years. First, he
was denied the right to vote, and we were told if he would only hold that
right in abeyance that he might enjoy other rights in fuller measure.
Many, under a misconception of the facts, accepted this view, but since
the denial of the right to vote other rights have been impaired. The right
to education in its broadest and most comprehensive sense is now
practically denied him everywhere, and if not denied the wisdom of his
receiving it is seriously questioned. The right to hold property and live
in it wherever he may purchase it is denied and restricted. The right to
work at whatever occupation he may be fitted is denied, and his
opportunities for earning a living are confined to narrower and narrower
limits each year. Even the fundamental right of a slave to petition when
the yoke is galling is denied him, and when he would assemble to formulate
just complaints in a way protected by the law of the land, he is accused
of whining and of stirring up bad feeling between the races, and so the
list might be extended indefinitely. The contest for the future must be a
constant effort to educate public opinion to the point where it will
concede to the Negro inalienable rights: The right to vote, the right to
an education in all that the term implies, the right to employment in all
occupations, the right to make of himself and of his people and of his
neighbors all that they may become under the most favored conditions. In
short, to use the phrase of Kipling, the ideal sought is, "Leave to live,
by no man's leave, underneath the law."

The effect of the decision of the Supreme Court of the United States in
the Bailey case is to render null and of no effect all of these labor laws
which either directly or indirectly resulted in compulsory slavery. In the
Bailey case the Supreme Court held that although the State statute in
terms appeared to punish fraud, the inevitable purpose is to punish for
failure to perform contracts for labor, thus compelling such performances
and it violates the thirteenth amendment to the constitution and is
unconstitutional. And again the further principle was announced that a
constitutional prohibition can not be transgressed indirectly by court or
statutory presumption any more than by direct enactment. The Court said:
"The Thirteenth Amendment prohibits the control by coercion of the
personal services of one man for the benefit of another and that the
Federal Penal Act is violated by any State resolution which seeks to
compel the services of labor by making it a crime to fail and refuse to
perform contract employment!" This decision rendered by Mr. Justice Hughes
and dissented from by Mr. Justice Holmes, an ex-Union soldier, and Mr.
Justice Lurton, an ex-Confederate soldier, goes as far as any decision in
upholding the spirit and intent of the Thirteenth Amendment as any
decision ever rendered by this, the highest Court of the nation. However,
this interpretation goes no further than the moral and physical fact of
compelling the service of labor. Slavery and involuntary servitude
according to the construction of the Court consist only in compelling one
to work against his will and does not relate to the thousand and one facts
of the human life by which one man might, though free in theory, be made
subservient to another man. For instance, this same Court decided, in a
case brought up from Arkansas where a Negro had, through the conspiracy of
a number of white men been prevented from pursuing his occupation as a
lumberman in a lumber district of that State, that it had no jurisdiction
in the premises; that the act involved did not raise a Federal question;
that the Negro was not the ward of the nation but an equal citizen, one
who had accepted the garb of citizenship and discarded the robe of
wardship and thereby restricted himself to pursue the remedies for wrongs
inflicted by individuals in State courts although it was argued to the
court that to prevent a man either directly or indirectly from pursuing a
calling or profession was as thoroughly to enslave him as to force him to
labor against his will.



Transcriber's Notes:

The following misprints have been corrected:
  "evdence" corrected to "evidence" (page 7)
  "State" corrected to "States" (page 8)
  "insitution" corrected to "institution" (page 11)





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