Volume 8 — NEGRO SERVITUDE IN THE UNITED STATES[A]

NEGRO SERVITUDE IN THE UNITED STATES[A]

Servitude Distinguished from Slavery

The first Negroes in the American colonies were called Africans, Blackamores, Moores, Negars, Negers, Negros, Negroes, and the like.[1] It is highly probable that Negroes were brought to America by some of the early colonists before 1619, for Negroes had been in England since 1553.[2] James Otis said: "Our colonial charters made no difference between black and white."[3] Some of such early Negro settlers might have been brought over from Barbadoes or other islands. The English colonists often went to and from the mainland for settlement and trade, and by 1674 Barbadoes was a "flourishing state" with a white population of 50,000 and 100,000 "Negroes and colored."[4] Negroes, along with Spanish explorers, are known to have been in North and South Carolina, Florida, Alabama, New Mexico, and California as early as 1526, 1527, 1540, 1542, and 1537, respectively.[5] However, the first Negroes, thus far known, in the American colonies, were the "twenty negars" introduced at Jamestown, in 1619, by the Dutch frigate.[6]

The first status of these Negroes early imported is of some importance. Although the historians do not always mention the fact, there is nevertheless ample proof of the existence of Negro servitude in most of the American colonies. The servitude did not always precede slavery in every case, nor was it ever firmly established as slavery eventually became. Still it is an interesting fact that Negro servitude frequently preceded and sometimes followed Negro slavery. In colonies where servitude followed slavery, it was due to the fact that these colonies were founded after the change of Negro servitude into slavery was well advanced. Even here, servitude accompanied slavery. In some of the colonies, the question of priority resolves itself into the question of the priority of customary servitude to customary slavery. In this case, however, it is probable that servitude was first, even though slavery was first recognized in law. In certain instances, the records make it certain that servitude preceded slavery. This was the case in Virginia.

Several authorities have shown the extent to which the priority of Negro servitude has been recognized. "At first the African slave was looked upon as but an improved variety of indented servant whose term of labor was for life instead of a few years."[7] "As has been mentioned, some Negroes were bound as slaves for a term of years only."[8] The Negroes of 1619 and "others brought by early privateers were not reduced to slavery, but to limited servitude, a legalized status of Indian, white, and negro servants, preceding slavery in most, if not all, of the English mainland colonies."[9] "Negro and Indian servitude thus preceded negro and Indian slavery, and together with white servitude in instances continued even after the institution of slavery was fully developed."[10]

Furthermore, there is not the slightest evidence that the colonists were disposed to treat as slaves the first Negroes who landed in the colonies. They had no tradition of slavery in England at that time. "Whatever may have been the intent and hope of the persons in possession of the negroes as regards their ultimate enslavement, no attempt to do so legally seems for a long time to have been made ... for some reasons the notion of enslavement gained ground but slowly, and although conditions surrounding a negro or Indian in possession could easily make him a defacto slave, the colonist seems to have preferred to retain him only as a servant...."[11] Servitude, on the other hand, was familiar enough, although not in the form which it eventually assumed in the colonies. The attitude of the colonists, when they first became confronted with the Negro question, was the attitude of Queen Elizabeth and Hawkins when it was proposed to go to Africa to barter for African servants.[12]

It was just as true in the colonial days as now that the attitude which the community takes towards the Negro population is largely determined by their relative numbers. If the Negroes had been numerous in the colonies immediately after 1619, it is reasonable to suppose that their status would have been defined earlier and more sharply than it was. But the numbers were not there.[13] Six years after the introduction of the first Negroes in Virginia, there were but twenty-three in the colony. Meanwhile the white population was about 2500. All through the first half of the century importation of Negroes was of an "occasional nature."[14] Forty years after the first introduction there were but three hundred Negroes in the colony.[15] It was during the last quarter of the seventeenth century that the number of Negroes in Virginia showed a noticeable increase. By 1683 there were three thousand; between 1700 and 1750, the increase was even more noticeable.[16] In Maryland, Negroes were not extensively introduced until the eighteenth century.[17] In 1665 a few slaves were brought to North Carolina and it was not until 1700 and after that their number reached eight hundred.[18] After their introduction by Sir John Yeamans in 1671 it was not until 1708 that the number of Negroes in South Carolina became a considerable part of the population.[19] In Pennsylvania, as early as 1639, a number of Negroes served a Swedish company. How many there were is not known.[20] In 1644, 1657, 1664 and 1677 several Negroes singly and in groups are known to have been in the region which afterwards became Pennsylvania. In this colony they were spoken of as "numerous" in 1702, but numerous then did not mean so many. Later their number is noticeable.[21] In Massachusetts, from 1638, when the Salem ship, Desire, returned from the West Indies with cotton, tobacco, and Negroes, to the close of the seventeenth century the number of Negroes was comparatively small.[22] Josselyn saw Negroes in the colony when he visited it in 1638-39.[23] In 1678, there were 200 in the colony and in 1678 Governor Andros reported that there were but a few. In 1680, Governor Bradstreet said no blacks or slaves had been brought in the colony in the space of fifty years except between forty and fifty one time and two or three now and then. In the nine years from 1698 to 1707, two hundred arrived and in 1735 there were 2,600 in the Province.[24] Immediately after 1619, then, the number of Negroes scattered throughout the colonies was comparatively small. It seems likely that their condition may be described as that of servitude, which at that time universally prevailed, rather than slavery.

We are likely to think of the status of the early Negroes in America as having been inherited or transplanted. Far from this, the status of the Negro in the early period, like slavery itself, was purely a local development.[25] The status of the early Negroes shows unmistakably that it developed in lines parallel to that of white servitude.[26] The motives which determined the growth of white servitude and Negro slavery are peculiar to the social and economic conditions of the colony of Virginia and its neighbors, whose inhabitants were primarily imported settlers and laborers. White servitude and black servitude were but different aspects of the same institution. As white servitude disappeared, Negro slavery succeeded it.[27]

The reason the early Negroes were not given at once the status of slaves is that there was at this time no legal basis for slavery. The Dutch who settled in New York seem to have defined the status of the Negro slave on the civil law of Holland. In the English colonies it was a local development.[28] Clearly, the ownership in the Negroes was widely recognized and practiced in custom and in law. It is equally clear, however, that white servitude and some form of black servitude existed for a long time side by side with Negro slavery. This recognition of slavery in custom and practice, moreover, makes its appearance near the date of the statutory recognition of slavery by the colonies.[29] Hence, the dates of this statutory recognition fix the "upper limit to the period" in which slavery may be said to have had a beginning.[30] In a number of the colonies, not only is absolute ownership in Negroes, hence slavery, conspicuous, by the absence of any records of it, but the priority of Negro servitude and of a free Negro class is established. Ownership in the services but not of the person was characteristic of both whites and Negroes in this early period.[32]

"Prior to 1619 every inhabitant of Virginia was practically a 'servant manipulated in the interest of the company, held in servitude beyond a stipulated term.'" "It was not an uncommon practice in the early period for shipmasters to sell white servants to the planters." By 1619 servitude was already recognized in the law of Virginia.[33]

In this early period the Company, as represented locally by its officials, was the sole controlling and directing power of the colony.[34] The Company was at the outset doubtful about the advantages of bringing in slaves, partly because they were not sure of the value of slave labor, and partly because they feared the Negro would not become a permanent settler and so contribute to the building up and defending the colony. The opposition of the trustees of Georgia to the importation of Negroes was rested on these grounds.[35] Early legislation in order to prohibit the trade in the colonies imposed duties on slaves imported.[36] Moreover, it appears that the Company generally held and worked the Negroes, who were purchased, in the interest of the government, frequently distributing them among the officers and planters. This was done, for example, in the island colony, the Bermudas, in Virginia, and in Providence Island.[37]

Established and universal as white servitude was it not only became the model of Negro servitude but also decidedly influenced its transition to slavery. When Negro servitude passed into slavery, it was white servitude that lent that slavery the mild character which it possessed until the early part of the nineteenth century.[38]

The earliest authorized effort of England for Negro servants further elucidates this point. In 1562, Sir John Hawkins proposed to take Negroes from Africa and sell them. Queen Elizabeth did not at first approve Hawkins' plan but questioned the justice of it. Hawkins argued that bringing the Africans from a wild and barren country would be eminently just and beneficial to the Africans and to the world. He seemed not to have had the purpose of selling the Africans into perpetual servitude: "Hawkins told her, that he considered it as an act of humanity to carry men from a worse condition to a better ... from a state of wild barbarism to another where they might share the blessings of civil society and Christianity; from poverty, nakedness and want to plenty and felicity. He assured her that in no expedition where he had command should any Africans be carried away without their own free will and consent, except such captives as were taken in war and doomed to death;.... Indeed it would appear that Hawkins had no idea of perpetual slavery, but expected that they would be treated as free servants after they had by their labor brought their masters an equivalent for the expenses of their purchase."[39] After this, Hawkins received approval and support from the Queen, and with three ships and crews he went on his trip to Africa.

Upon his arrival he began traffic with the natives. He sought at first to persuade the blacks to go with him, offering them glittering rewards. When the natives did not respond so readily to his entreaty, members of his crew, under the influence of rum, undertook to coerce the Africans.[40] Hawkins sought to dissuade them and reminded the men of his promise to the Queen. They finally succeeded in getting on board a number of Africans and set sail for the Spanish islands where the Africans were to be sold as servants.[41]

The early Negroes of Virginia, moreover, were servants. On the status of "the 1619 Negroes" historians are uncertain, but the popular conception of the situation is undoubtedly erroneous. The Dutch frigate sold the Negroes to the Company which controlled and distributed them. Some of them were clearly retained by the officers while others "were put to work upon public lands to support the governor and other officers of the government." There is no evidence that any of these Negroes were made slaves, while evidence that they were servants is abundant.[42]

The statutes of Virginia up to 1661 indicate the existence of Negro servitude rather than that of slavery.[43] In 1630, whites were whipped for fornication with the blacks "before an assembly of negroes." In 1639 and 1640, all persons except Negroes were to be provided with arms and ammunition or be fined.[44] Up to that time the acts do not indicate slavery. The act of 1655 refers to Indian slavery.[45] The act of 1659 does not show that Negro slavery existed in the colony, but apparently aims to prevent it.[46] No other acts, in the statutes, throw any light on the status of the Negro before the act of 1661. This acts reads, "In case any English servant shall run away in company with any negroes who are incapable of making satisfaction by addition of time, be it enacted that the English so running away in company with them shall serve for the time of the said negroes absence as they are to do for their own by a former act."[47] The inferences from this act are three: some of the Negroes in the colony were slaves, others free, and still others servants. The repetition of this act the following year made provision for runaway Negro servants also by a change of statement.[48]

Notwithstanding the statutes, Russel found that in the records of county courts dating from 1632 to 1661 negroes are designated as 'servants,' 'negro servants,' or simply as 'negroes,' but never in the records were the Negroes termed 'slaves'. From the context of the records, moreover, "servant" was distinctly meant and not "slave." Again, according to the census taken in 1624-1625, there were twenty-three persons of the African race in Virginia and they are listed as "servants."[49] In several musters of settlements the names of Negroes appear under the heading, "Servants"; sometimes only "Negro" appears.[50] The General Court in October, 1625, had before it for the first time a question involving the legal status of the Negro in America. A Negro named Brass had been brought to the colony by the captain of a ship. Upon handing down the decision as to what should be done with Brass, since his master had died, the Court "ordered that he should belong to Sir Francis Wyatt, Governor," evidently as servant.[51] Anthony Johnson and Mary, his wife, whose names appeared as servants in the census mentioned above, were, at sometime before 1652, given their freedom from servitude, for in that year they were exempted from payment of taxes by the county court on account of the burning of their home. The order of the court in reference to Johnson and his wife mentioned that "they have been inhabitants in Virginia above thirty years." According to this, they had been in the colony at least from 1621 which approaches 1619. It appears that they were among the first Negroes sold at Jamestown. And this, with the understanding that they were not free at first establishes quite well their original status as servants as well as that of the 1619 Negroes and other Negroes in the colony.

The free Negro, Anthony Johnson, in 1653 owned John Castor, another Negro of Northampton County, as his indented servant. In 1655, a Negro was bound to serve George Light for a period of five years.[52] The court record of the discharge of Francis Pryne in 1656 is an example of the discharge certificate of Negro servants:

"I Mrs. Jane Elkonhead ... have hereunto sett my hand yt ye aforesd Pryne [a negro] shall bee discharged from all hindrance of servitude (his child) or any [thing] yt doth belong to ye sd Pryne his estate.

Jane Elkonhead"[53]

In some cases, as it was with the white servants, Negroes were given written indentures, of which Russell gives several examples. It was an early practice of the colony to allow "head rights," a certain number of acres of land for every servant imported. In 1651 "head rights" were allowed on the importation of a Negro whose name was Richard Johnson. "Only three years later a patent calling for one hundred acres of land was issued to this negro for importing two other persons. Hence, it appears that Richard Johnson came in as a free negro or remained in a condition of servitude for not more than three years."[54] It was a practice also of those who held servants to allow them the privilege of raising hogs and poultry and of tilling a small plot of ground. The court records show that by this means John Geaween, Emanuel Dregis, and Bashasar Farando, as Negro servants, between 1649 and 1652, accumulated property. Again, there are cases illustrating that the Negro servant received "freedom dues" as the white servants at the close of the term of service.[55] Thus the first and early Negroes of Virginia were servants, not slaves. They were not only servants at first, but also servants in general for a period of years.

FOOTNOTES:

Negro Servitude and its Priority in other Colonies

Slavery received statutory recognition in the colony of Maryland in 1663, and in North Carolina in 1715. White servitude had long existed in these colonies, receiving statutory recognition in Maryland as early as 1637, and in North Carolina in 1665. Servitude, therefore, had ample time for local definition "before slavery entered upon either its customary or legal development."[1] Ballagh holds that in these colonies, also, Negro servitude historically preceded slavery.[2] In Maryland, particularly, along with Virginia and Massachusetts, the "circumstances surrounding the enactments defining slavery" indicate a natural transition from Negro servitude to slavery. Since servitude existed in these states, it seems probable, from analogy with conditions in other parts of the country, that the early Negroes in these colonies were servants.[3]

Negro servitude preceded Negro slavery in Massachusetts. This servitude existed legally and underwent a period of development. After the recognition of slavery in 1641, Negro servitude continued along with slavery and in a more pronounced manner.[4] The early inhabitants of Massachusetts were hostile to the introduction of slavery. This attitude was, perhaps, responsible for the milder form which Negro bondage first assumed, for "the facts of history ... seem to establish this conclusion, that slavery never was in harmony with the public sentiment of the colony."[5] The Salem ship, the Desire, brought to the Colony, February 26, 1638, "some cotton, tobacco, and negroes." This cargo had been taken on by Mr. Pierce of the Desire, at Providence Island, evidently in exchange for fifteen Indian boys and two women, taken as prisoners in the Pequod War.[6] At this time, it was common to purchase servants from shipmasters and merchants, and so it is not certain that the Negroes brought back by Mr. Pierce were slaves. At Providence, moreover, Negroes had the status of servants.[7] When Josselyn visited New England in 1638-39, he saw in Boston servants, English and Negroes.[8] In 1641, after the adoption of the Body of Liberties, a master of a ship brought two Negroes for sale into slavery, but was compelled by the court to give them up. These Negroes were then sent back to their native country. In 1646, the General Court passed an act "against the heinous and crying sin of man-stealing." In this colony "slaves" testified against white men in court and, for a long time after 1652, served in the militia.[9] Again, beginning with 1700, Judge Sewall and the Quakers started their memorable work against slavery. Charles Sumner said concerning slavery in Massachusetts: "Her few slaves were merely for a term of years, or for life."[10]

The Bond of Liberty, adopted in 1641, evidently made provision for servitude.[11] Negroes were held as servants under this provision. During the entire colonial period until 1791, they were rated as polls, as, for example, in the tax laws, in 1718, which provided that "all Indian, negro and mulatto servants for a term of years were to be numbered and rated as Polls, and not as Personal Estate."[12]

Prior to 1700, moreover, Negroes had the status of servants in Pennsylvania. In the region of the Delaware River, which became a part of Pennsylvania, the Dutch had a few Negroes with them in 1636. In 1639, also, a number of Negroes worked under the New Netherlands Company on the South River.[13] It is not definitely known that these Negroes were servants, although the circumstances indicate that they were. The same is true of the Negroes in the employment of the Dutch during this very early period. Provision was apparently made for their gradual absorption by the free population. As late as 1663, there existed laws which "granted them a qualified form of freedom, working alternate weeks, one for themselves, one for the Company."[14] Among the Swedes, also, in the region of the Delaware, were a number of Negroes. Just after Rising had come to the region as head of the Swedish Company, in 1654, he issued an ordinance that "after a certain period Negroes should be absolutely free." In Penn's charter to the Free Society of Traders, in 1682, there was a provision that if the inhabitants "held blacks they should make them free at the end of fourteen years...." Benjamin Furley, also, vigorously opposed holding Negroes longer than eight years.[15] The Friends of Germantown in 1688, made strong protests against slavery; and in 1693, George Keith declared that the masters should let the Negroes go free after a reasonable term of service.[16] Later on, children of white mothers and slave fathers became servants for a term of years, and the same was true of the children of free Negro mothers and slave fathers.[17]

After 1700, Negro servants were a common and well-recognized class in Pennsylvania. Negroes who were "unable or unwilling to support themselves" were bound by the court for the term of one year.[18] All children of free Negroes were bound out until twenty-one or twenty-four years. Mulatto children "who were not slaves for life" were bound out "until they were twenty-eight years of age." The abolition act of 1780 provided among other things that "all future children of registered slaves should become servants until they were twenty-eight."[19] And again, Negroes manumitted could indenture themselves until twenty-eight.

Negro servants were generally subject to the laws which governed the white servitude; but they were subject further to other laws which gave to the Negro servants a status between that of the white servants and Negro slaves. Negro servants were apprenticed for a longer period than white servants; and such servants were object of a considerable interstate traffic, people from other states selling them into Pennsylvania. They were often apprenticed and generally given some form of freedom dues. So entrenched was Negro servitude here that in 1780 there were probably a greater number of servants in Pennsylvania than slaves.[20]

In Rhode Island Negro servitude preceded and passed into slavery.[21] Although as early as 1652 the practice of buying Negroes for service or slaves for life existed in this colony, this was not sanctioned by law. On the other hand, white servitude was clearly recognized in statute law of 1647.[22] In 1652 the legally established servitude, as well as the attitude of the colonists, undoubtedly influenced the passing of a law to prohibit slavery and provide for servitude. This law said: "Whereas, there is a common course practiced amongst English men to buy negers, to that end they may have them for service or slaves forever; for the preventinge of such practices among us, let it be ordered, that no blacke mankind or white being forced by covenant bond, or otherwise, to serve any man or his assighness longer than ten yeares, or until they come to bee twentie four yeares of age, if they bee taken in under fourteen, for the time of their cominge within the liberties of this Collinie. And at the end or terme of ten yeares to sett them free, as the manner is with the English servants. And that man that will not let them goe free, or shall sell them away elsewhere, to that end that they may bee enslaved to others for a long time, he or they shall forfeit to the Collonie forty pounds."[23] Although this law was enforced for a time, it soon became a dead letter, for after 1708, when slavery received sanction by statute, buying and selling Negroes was practiced generally.[24]

The first few Negroes in Connecticut were servants along with a few Indian and white servants. It was due, no doubt, to the paucity of the Negroes—there were in 1680 not above thirty in the colony—that they became servants. However, as this number increased, their status became gradually that of slaves by custom. Because of the fear of treachery from the Negro and Indian servants, the General Court, in 1680, ordered that "neither Indian nor negar servants shall be required to train, watch or ward in the Colony."[25] Evidently some of the servants very early had served out their time and had been freed, for by a law, in 1690, "Negro, mulatto, or Indian servants," "suspected persons" and free Negroes who were found wandering could be taken up and brought before a magistrate.[26] An act in 1711 made provision for the care of Negro servants and others who came to want after they had served out their time. "An act relating to slaves, and such in particular as shall happen to become servants for life, enacts that all slaves set at liberty by their owners, and all negro, mulatto, and Spanish Indians, who are servants to masters for time, in case they shall come to want after they shall be so set at liberty or the time of their service be expired, they shall be relieved at the cost of their masters." In fact, slavery of the "absolute, rigid kind" never existed to any extent in Connecticut.[27]

FOOTNOTES:

The Transition from White Servitude to Slavery

Let us now direct our attention to the change from servitude to slavery. It is well to note here, however, that white servitude did not embrace the chief features of slavery. Nieboer defines a slave as "a man who is the property or possession of another man, and forced to work for him." Again, "slavery is the fact that one man is the property or possession of another."[1] White servitude lacked the final and formal feature of "property," namely complete "possession," and consequently never included either perpetual service or the transmission of servile condition to offspring, although during the first half of its development in the colonies, servitude tended to assume the character of slavery.[2][3]

The servitude that existed up to 1619 underwent change until it finally crystallized into indented servitude. The conditions were not as bad as the testimony of colony servants and observers of the period would indicate, and yet where there were so many references to it the condition evidently obtained.[4] In enlisting new settlers for the colonies, the Company "issued broadsides and pamphlets, with specious promises, which, however honest its purpose, were certainly never fulfilled."[5] In Virginia in 1613, colonists of 1607 who had served out the term of their original five-year contract were either retained in servitude or granted a tenancy burdened with oppressive and unfair obligations. The changed land policy of 1616 brought upon the colony servants further disadvantages. Before March, 1617, when the men of the Charles City Hundred demanded and were granted their "long desired freedom from that general and common servitude," no freedom had been granted to the colonists. After this until 1619, it was only through "extraordinary payment" that freedom was obtained.[6] Many of these colonists of Virginia, moreover, were retained in servitude until 1624 when the Company dissolved.[7]

Other incidents, growing out of the servant's role, tended to make the condition of servitude more rigid. In order to make the system of labor under the Company successful, Lord Delaware, in 1610, organized the colony into a "labor force under commanders and overseers"; and close watch over the men and their work was accordingly maintained. "The colonists were marched to their daily work in squads and companies under officers, and the severest penalties were prescribed for a breach of discipline or neglect of duty. A persistent neglect of labor was to be punished by galley service from one to two years. Penal servitude was also instituted; for 'petty offences' they worked 'as slaves in irons for a term of years'"; and there were whipping, "hangings, shooting, breaking on the wheel, and even burning alive."[8]

It may be observed from references made to this early servitude that, generally, it was harsh. We read: "Having most of them served the colony six or seven years in that 'general slavery'"; "'three years slavery' to the colony"; "noe waye better than slavery"; "rather than be reduced to live under like government we desire his Magestie that Commissioners may be sent over with authority to hang us"; and "Sold as a d—— slave."[9] Undoubtedly, these references are not all true; yet, they are not altogether false. At least they indicate that the conditions of this servitude approached slavery.[10] Out of these, informal "slavery" and unsettled conditions of early servitude, indented servitude developed.

As a general rule, every advantage was taken of the servant by the servant-dealers and masters. Opportunity to hold the servant longer than the period allowed by law or to extend his service was not infrequently seized upon, for the laxity of the system and the need of labor in the colonies made this a natural consequence. During the first period of servitude, the term of service in many cases was not prescribed in the indentures; and sometimes servants were brought over without indentures, or with only verbal contracts.[11] Thus trouble about the length of their term of service arose, especially in connection with the servants who did not have indentures. Circumstances indicate that in the interpretation of law and the facts, the master generally triumphed.[12] It was in 1638-39 that Maryland took the first definite step to prevent unfair treatment of servants by their masters. In 1654 it became necessary again to pass a law determining the servant's age and length of service. Virginia enacted similar measures in 1643 and 1657. Still, when the servants were ignorant, "which was usually the case," or could not speak the English language, the master took advantage of their shortcomings.[13] Notwithstanding the repeated efforts of the courts and assembly to protect the servant in his relation to the master, the lucrative practice of extending a servant's term, which became customary in the case of Indian and Negro servants, proved a significant factor in the degradation of white servitude.

Under the system of servitude, the conduct of the servant necessarily bore a close relation to the interests of the master. When the servant stole, ran away, "unlawfully assembled" or "plotted," indulged in fornication, spent unusual time in social intercourse, or was secretly married, the master as a rule suffered some loss. And for protection of the master, methods of punishment were resorted to, the character, definiteness, and attendant circumstances of which tended to reduce the servant to the status of a slave.

As the servant had no money with which to pay fines, some other method of punishment had to be used. Corporal punishment of a harsh character appears to have been established. Practiced at first by individuals, it soon became a general custom, and finally found its way into the laws of the colonies. During the period prior to indented servitude, instances of severe whipping of servants are numerous.[14] The first colony law which gave the master the privilege of regulating the servant's conduct in this manner, however, appeared in 1619.[15] Corporal punishment then gradually gained ground and won sanction by the colonial courts. A law in Virginia provided in 1662 "for the erecting of a whipping post in every county" and the General Assembly of this colony, in 1688, reassured the master of his right to whip the servant. All along this right was so much abused[16] that it was restrained in Virginia. In 1705 an act ordered the master not to whip the servant "immoderately"; and to whip a Christian white servant naked, an order from a justice of peace had to be obtained.[17] Several other colonies similarly restrained the right to whip.[18]

Another method of punishment that gradually hardened the conditions of servitude was the addition of time to the term of the servant. This evidently originated in the custom of the Company to prescribe as penalty for offense "service to the colony in public work."[19] This method of punishment was extensively used throughout the colonies. Sometimes the length of additional service was left to the discretion of the master, but this was so abused that the government saw fit to make regulations, which, however, themselves were not free from harshness.[20]

At first the servants undoubtedly enjoyed the right of marriage, but as this proved a source of much inconvenience and loss to the master, since the men servants lost time, stole food and other provisions, and the women servants lost time during pregnancy and in rearing children, laws restricting marriage of servants were enacted in the colonies. In Virginia, in 1643, this right was legally restricted. When the servants were secretly married, in some cases the man had to "serve out his or their tyme or tymes with his or their masters—after serve his master a complete year more for such offense committed" while the woman-servant had to double her time of service.[21] In other cases, as in North Carolina, the servants were required to serve one year.[22] Further restriction of the right of marriage appeared in Virginia in 1662. When a woman-servant and a Negro slave were married in Maryland, the woman was, in some instances, reduced to slavery, as she was required to serve her master during the life of her husband.[23] The effect of this law was, in certain instances, to complete practically the transition from servitude to slavery. Children resulting from such marriages were either made slaves for life, or required to serve until they were thirty years of age. Fornication also was made punishable by an addition of time. The woman-servant, who gave birth to illegitimate offspring, received an addition of time of one and a half to two and a half years.[24] When the offspring was by a Negro, mulatto, or Indian, she was required to serve the colony or the master for an additional time of four, five, or seven years. The children in these cases were bound out for thirty-one years.[25] With marriage restricted as it was, the family life of the servants was likely to be disorderly. Morals of servants were notably loose, and masters sometimes took advantage of their position to corrupt their servants still further.[26]

The servants were also restricted in political affairs. In the earliest period of servitude in the colonies, servants, as "inhabitants," enjoyed with the other "inhabitants" whatever suffrage there was.[27] Later on, however, this rare privilege dwindled to nil. For the "first sixteen years of the settlement" in Massachusetts the servants exercised the franchise.[28] In Virginia they voted until 1646 and the freedservant until 1670.[29] In Maryland in 1636, in the first assembly of the colony, only "freemen" seemed to hold sway.[30] Disfranchisement became the rule, however, after the middle of the seventeenth century.[31] The very noticeable scarcity of information on the servant's exercise of the suffrage seems to suggest that as a matter of understanding he did not enjoy the franchise. Evidently there prevailed a certain suspicion concerning not only the servant's ability to use the suffrage, but also his proper use of it; and this attitude was also always fairly pronounced toward the recently freedservant.[32]

The final remedy of the servant, then, was flight. From the beginning of indented servitude, the servants invariably deserted their master's service. While in all cases they did not run away on account of abuses, the practice brought on abuses and other incidents which, during the first part of servitude, became more and more intolerable.

The number of runaways increased as the servants continued coming in. It was comparatively easy for them to escape to the more northern colonies, since the country about them was convenient for hiding and clandestine traveling; and the fugitives themselves, on account of having no physical characteristics distinguishable from those of the other colonists, could not easily be identified.[33] Thus North Carolina became popularly known as the "Refuge of Runaways" and that colony, Maryland, and the Dutch plantations were to fugitive servants what Massachusetts, Ohio, and Canada were later to runaway slaves.[34] The "under-ground railroad," too, had a forerunner in the early period of indentured servitude.[35] Methods of dealing with the runaways necessarily grew more strict, and precautions similar to those of slavery inevitably appeared. "Unlawful assembling," "plotting," and tentative insurrections became a source of apprehension.[36] Then came methods of pursuit, return, and punishment of the fugitives. Sometimes the master made the pursuit; at other times the sheriff and his posse did it; and often the constable with a search warrant went in quest of the fugitive. Everyone who traveled was required to have a pass or a certificate of freedom to show his status;[37] and this no doubt afforded the servants a means of using forgery to facilitate their escape to freedom.[38] Again, whenever it was possible, advertisements for runaways were put in the newspapers.[39] During this time, too, there were enacted colonial statutes providing for the return of fugitives by one colony to the other. Colonial governments often accused each other of unduly holding and protecting the runaways.[40]

The greatest abuses in servitude occurred in the punishment of fugitive servants. These abuses, moreover, gradually increased in number and intensified in character.[41] The expense of the servant's capture, return, and loss of time from work, and the desire to prevent running away led to stringent punishment and evident abuses.[42] In Virginia before 1643, some runaways were punished with "additional terms from two to seven years, served in irons, to the public."[43] The act of 1643 in Virginia provided that runaways from their "master's service shall be lyable to make satisfaction by service at the end of their tymes by indenture (vizt.) double the tyme of service soe neglected, and in some cases more if the commissioners ... find it requisite and convenient."[44] The laws of 1639 and of 1641-42 made running away in Maryland punishable with death, but the proprietor or governor could commute this penalty to servitude of seven years or less.[45] Corporal punishment, too, scathed the fugitives.[46]

Plainly, then, the fugitive servant tended to assimilate the status of the servant to that of the slave and tended to become mere property. The servant could be transferred as property from one person to another, for from the beginning his services were bought and sold. The custom of purchasing and disposing of apprentices and servants was early practiced in Virginia and out of this practice grew the more definite and far-reaching custom of signing the servant's contract. Begun in 1623, it was resented by servants and deprecated by England; and yet with no question of its legality, the selling of servants' time became a common practice.[47] Later on, upon securing the servant in England, the indenture was often made out to the shipmaster or his assigns, and the servant was sold by him to the planters in America. To sell the servants, merchants were sometimes invited on board the ship, where they could look over the human cargo and select those who were desirable. Often it happened that the servants were brought over without indentures. They were made to believe that their lot would be made easy by the master who would buy them.[48] These, too, were sold by the captain to the highest bidder.[49] That the servants were dealt with in this way eventually made the indentures as a rule negotiable, and this led to further degradation of the servants' status. The theory that the servant's time was property was tenable as late as 1756 in Virginia, Maryland, and Pennsylvania, for during the war with the French and Indians, when the governments and officers were recruiting the servants of the masters, the masters protested, resisted, and won.[50]

The servant, then, gradually became property, not principally because of a tendency to consider the Negro servant as such, but because of the incidents necessarily arising from the methods which had to be used to make white servitude possible in the colonies. These methods, then, the custom of using them, and finally the tentative legal sanction of them, were fairly well practiced before the Negro's arrival and long before he was considered as chattel.[51]

FOOTNOTES:

The Gradual Transition of Negro Servitude into Negro Slavery

The status of the Negro in British America was at first that of a servant. He was not held for life, but set at liberty after a term of service. It was his service, not himself, that was the property or chattel of another, and his offspring was not subject to servitude. Again, he had privileges similar to and in some cases identical with those of the other servants; in many cases the rules which governed other servants governed him as well. In short, the Negro was not the "absolute possession" of another.[1] Moreover, it was some years before he became a slave. Distinctly during this time, his status went through a gradual process of transition inevitable in the development of subjection in the colonies.[2]

"Servant" becomes "servant for life" and "perpetual servant" in colonial laws. The progress of extending the Negro servant's term is generally observed in the language of the laws of the colonies. It appears that as the servants went into slavery, "what is termed perpetual was substituted for limited service, while all the predetermined incidents of servitude, except such as referred to ultimate freedom, continued intact." Later the terms "servant for life," "perpetual servant" and "bond servant" were used interchangeably with "slave" and the words "servant" and "slave" and their liabilities were joined in the same enactments.[3] It was some time before the word "slave" was clearly and definitely used, and the servant who became slave lost all the earmarks of a servant.[4]

The practice of holding the servant after the expiration of his term was more characteristic of black servitude than white. As the Negroes increased in numbers, this practice increased. As white servitude declined, the assurance of labor waned. The extension of the Negro's term, then, for a few years longer and eventually to life service appeared a logical as well as a necessary step for the masters to take.[5] Moreover, since the public was often led to believe that when at liberty the Negroes were an uncontrollable and probably dangerous element of the population, extension of their terms in servitude gradually gained public approval.[6] Hence, the Negro servant was held whenever the occasion demanded and the opportunity presented itself.

In illustrating the gradual transition into slavery through repeated holding and attempts at holding the Negro servants for life, court cases of Virginia may be taken as typical. Brass, a Negro, whose master, a ship captain, had died, was, upon being threatened with enslavement, assigned by the General Court in 1625 as servant to the governor of the colony instead of as slave to the company of his late master's ship.[7] John Punch, who ran away in company with three white servants, was adjudged by the court, in 1640, to serve his master the "time of his natural life" while the white servants were given four additional years to serve. Anthony Johnson, a Negro to whom attention has already been called, owned a large tract of land on the Eastern Shore. In 1640 he became involved in a suit for holding John Castor, another Negro, seven years overtime. It appears that Castor was set free. Later, however, Johnson brought suit against Robert Parker, a white man, for harboring Castor as if he were a free man; and the court decided that Castor return to his master, Johnson, evidently for service for life. Sometime before 1644, a mulatto boy named Emanuel, a servant, was sold "as a slave forever" but later was adjudged by the Assembly "no slave and but to serve as other Christian servants do." In 1673, a servant, who had been unlawfully detained beyond his five-year period, won judgment against his master, George Light; the Negro servant was set free and received his freedom dues from the master.[8] In 1674 Philip Cowan petitioned the governor for freedom on the ground that Charles Lucas kept him three years overtime and then compelled him by threats to sign an indenture for twenty years.[9]

Other indications of holding the Negro servant may be shown. In Pennsylvania, Negro servants were invariably given a longer term of service than the white servants and often held after the expiration of the term;[10] so extensive was the practice of holding these servants that, in 1682 and 1693, laws were enacted against it.[11] In Georgia a road to slavery was paved by extending the servants' terms. Negroes were brought out of North Carolina into Georgia by white servants who, becoming tired of servitude, had these blacks serve out their unexpired terms with the Georgia masters. As this worked well the masters lengthened the term of the Negro servants to life.[12] In fact, on account of the reciprocal influence of white servitude and Negro servitude, wherever white servants were taken advantage of and held longer, Negro servants were subjected to harsher treatment and longer extension of term.

The mulatto class in the colonies constituted an element through which transition of Negro servitude into slavery is apparent. As the mulattoes were looked upon as the result of an "abominable mixture" of the races and as representing a troublesome element in society, local laws and colonial statutes were gradually enacted to check and control them.[13] The statutes first aimed at serving as a deterrent upon the women, and hence arose the doctrine of partus sequitur ventrem, which imposed the mother's status upon the offspring. However, the first statute to this effect, the act of 1662 in Virginia, was largely enacted because of fornication of Englishmen and Negro women.[14] Statutes enunciating this doctrine were enacted in the other colonies as follows: Maryland, 1663; Massachusetts, 1698; Connecticut and New Jersey, 1704; Pennsylvania and New York, 1706; South Carolina, 1712; Rhode Island, 1728; and North Carolina, 1741.[15] Thus not only Negro mulattoes, that is, the offspring of white men and Negro women, were prevented from becoming servants, but those who were already either freemen or servants were gradually reduced to slavery. To check the growth of the mulatto class, particularly through the intermixture and intermarriage of Negro men and white women, a Virginia law in 1691 provided that the woman be fined, or sold into service for five years, or given five years of added time, and the mulatto be bound out for thirty years.[16] In Maryland, Pennsylvania, and North Carolina, similar laws were passed.[17] The mulatto, then, in one case was reduced from freeman and servant to slave, and in the other case made a servant for thirty or more years.[18] Thus the debasing of the status of the mulatto helped the transition to slavery.

Just as the fugitive white servant repeatedly gave occasion, through incidents growing out of his capture, return, and deterrence, to lower the status of the servant until it assumed the character of slavery, so the fugitive Negro servant made his lot harder and influenced the extension of his term to perpetuity. The Negro servant, unlike either the Indian or white servant, obviously had little to tempt him to run away from his master; his physical characteristics made detection easy, there was no free Negro population to which he could escape, the unfamiliar country around him held but poor prospects for his making a livelihood more easily than under his master, and the strangeness of his situation undoubtedly had much to do with his acceptance of it. Yet the Negro as a servant did run away. It is very probable that the practice of running away to the Indians began when he was a servant.[19] Again, it appears that he ran away not infrequently in company with white servants. In Virginia, in 1640, John Punch, a Negro servant, ran away in company with two white servants. The three were overtaken in Maryland and brought back to Virginia for trial. The court ordered that the white servants' terms be lengthened four years, and that Punch, the Negro servant, "shall serve his master or his assigns for the time of his natural life."[20]

The transition of servitude to slavery, moreover, is distinctly noticed in the change in the conception of property in the service of the Negro to that of property in his person.[21] Like that of the white and Indian servants, the Negro's service through contract, implied and expressed, was owned by the master. This ownership, however, consisted of only the right of the master to the service of the servant. Gradually, as this service necessarily became involved in wills, estates, taxation, and business transactions, the person of the servant instead of his service came more and more to be regarded, both in custom and in law, as property, so that eventually the servant, himself, was considered personal estate. Thus he was "rated in inventories of estates, was transferable both inter vivos and by will, descended to the executors and administrators, and was taxable." While he was now a "contractual person," he still retained such incidents of personality as rights of limited protection, personal freedom, and possession of property.[22] As the service of the servant became more and more regarded and treated as a form of property, his personality was completely lost sight of, and his term was extended to the time of his natural life.[23] Easily, then, the Negro servant regarded at first a part of the personal estate came at length to be regarded as a chattel real.

T. R. Davis

Walden College, Nashville, Tenn.

FOOTNOTES: