Front Page Titles (by Subject) § 43 a.: Convict lease system.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
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§ 43 a.: Convict lease system.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Convict lease system.—
An interesting question has lately arisen in this country, in respect to the State control of convicts. In many of the Southern States, instead of confining the convict at hard labor within the walls of the penitentiary, in order to get rid of the burden of maintaining and controlling them within the penitentiary, provision was made for leasing the convicts to certain contractors to be worked in different parts of the State, usually in the construction of railroads. The entire control of the convict was transferred to the lessee, who gave bond that he would take care and guard them, and promised to pay a penalty to the State for the escape of each convict. The frequency of the reports of heartless cruelty on the part of lessees towards the convicts, prompted by avarice and greed, and rendered possible by the most limited supervision of the State, has aroused public sentiment in opposition to the convict lease system in some of these States, and we may confidently expect a general abolition of the system at no very distant day. But it is still profitable to consider the constitutionality of the law, upon which the convict lease system is established. In Georgia, the constitutionality of the law was questioned, but sustained. In pronouncing the statute constitutional, the court said: “In the exercise of its sovereign rights for the purpose of preserving the peace of society, and protecting the rights of both person and property, the penitentiary system of punishment was established. It is a part of that police system necessary, as our lawmakers thought, to preserve order, peace and the security of society. The several terms of these convicts fixed by the judgments of the courts under the authority of the law, simply subject their persons to confinement, and to such labor as the authority may lawfully designate. The sentence of the courts under a violated law confers upon the State this power, no more; the power to restrain their liberty of locomotion, and to compel labor not only for the purposes of health, but also to meet partially or fully the expenses of their confinement. The confinement necessarily involved expenses of feeding, clothing, medical attention, guards, etc., and this has been in its past history a grievous burden upon the taxpayers of the State. Surely it was competent for the sovereign to relieve itself of this burden by making an arrangement with any person to take charge of these convicts and confine them securely to labor in conformity with the judgments against them for a time not exceeding their terms of sentence. It was a transfer by the State to the lessee of the control and labor of these persons in consideration that they would feed, clothe, render medical aid and safely keep them during a limited period.”1 It cannot be doubted that, as a general proposition, in the absence of express constitutional limitations as to the place of imprisonment and labor, the convict could be confined and compelled to labor in any place within the State, and in fact he may be compelled to lead a migratory life, going from place to place, performing the labor required of him by the law of the land.2 And the only case in which such a disposition of the convict may be questioned, would be where this law was made to apply to one, who had been convicted under a different law, the terms of which allowed or required the sentence to provide for confinement at hard labor within the walls of the penitentiary. A convict under such a sentence could not, in the enforcement of a subsequent statute, be taken out of the penitentiary and be compelled to work in other parts of the State. The application of the new law in such a case would give it a retrospective operation, and make it an ex post facto law. But ordinary constitutional limitations would not be violated in the application of such a law to those who may be convicted subsequently. The convict lease system is not open to constitutional objection, because it provides for the convict to be carried from place to place, performing labor wherever he is required. The objectionable feature of the system is the transfer to private persons, as a vested right, of the control over the person and actions of the convict. It is true that all the rights of the individual are subject to forfeiture as a punishment for crime, and the State government, as the representative of society, is empowered to declare the forfeiture under certain constitutional limitations. The State may subject the personal liberty of the convict to restraint, but it cannot delegate this power of control over the convict, any more than it can delegate to private individuals the exercise of any of its police powers. The maxim, delegatus non delegare potest finds an appropriate application, in this connection.1 Certainly, when we consider the great likelihood of cruel treatment brought about by the greed and avarice of the lessees of the convict, personal interest outweighing all considerations of humanity, it would not require any stretch of the meaning of words to declare the convict lease system a “cruel and unusual punishment.” The State may employ its convicts in repairing its roads, in draining swamp lands, and carrying on other public works; the State may even lease the convicts to labor, the lessee assuming the expense of maintaining and guarding them, provided the State through its officials has the actual custody of them; but the State cannot surrender them to the custody of private individuals. Such a system resembles slavery too much to be tolerated in a free State.
THE CONTROL OF DANGEROUS CLASSES, OTHERWISE THAN BY CRIMINAL PROSECUTION.
Georgia Penitentiary Co. v. Nelms, 65 Ga. 499 (38 Am. Rep. 793).
Holland v. State, 23 Fla. 123; City of Topeka v. Boutwell, 53 Kan, 20.
It is held in Arkansas that the lessee of the State penitentiary cannot hire out the convicts to others. Arkansas Industrial Co. v. Neel, 48 Ark. 283.