[27] Stroud, Laws Relating to Slavery, p. 11, note; Hurd, Law of Freedom and Bondage, p. 271.
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]