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:
[1] Nieboer, Slavery as an Industrial Institution, p. 42.
[2] Doyle, Hist. of Eng. Col. in Am., p. 385.