Peonage

by Lafayette M. Hershaw

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.