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]