Richard B. Morris, Government and Labor in Early America, 1946.
IX. THE LEGAL STATUS OF SERVITUDE
TERMS AND CONDITIONS OF EMPLOYMENT
Term of service. Unlike the slave the indentured servant was bound to labor for his master merely for the period of time expressly stated in his contract or, in the absence of a formal contract, as laid down by custom or statute. At the expiration of his service he was a free man.1 The term of service of bound servants ranged, in the case of adults, from one to seven years or more, although die bulk of such indentures averaged from three to five years.2 A Massachusetts order of 1631 forbade the hiring of any person as a servant for less than a year "unless hee be a settled housekeeper."3 In the seventeenth century the colony fined masters for freeing servants before the end of their terms or for selling them their time. The government doubtless wished to prevent unemployed workmen from becoming public charges.4
Servants coming to the colonies without indentures were bound according to the custom of the country. In the tobacco provinces legislation provided in substance, despite variations and modifications, that servants twenty years of age or over were to serve four years, those between sixteen and twenty from six to eight years, and those under sixteen, usually, until they reached twenty-one.5 Under these statutes very considerable numbers of servants were brought before the courts have their ages adjudged and the length of service determined.6 In this way their service was made a matter of record. The Virginia labor ode of 1705 provided that, where a servant had been sold by the custom but pretended to have indentures, he was to be allowed two months in which to produce the articles, failing which he was to be permanently estopped from making any claim under such a covenant.7
A study of this important activity of the colonial court discloses the relative youthfulness of the typical emigrant servant. Of the 392 servants in Virginia whose ages were given in the census of 1624-25, the average age was twenty-three. Only thirteen were forty or over, and 154 were under twenty-one.8 An examination of the county court records reveals that the overwhelming majority of emigrant servants coming in without indentures were adjudged to be under nineteen. The average age was between fourteen and sixteen and the average terms assigned by the courts ran from six to eight years. Some servants coming to die colonies were as young as six years.9 Whether or not county justices were as acute as modern railroad conductors in judging children's ages mm remain a matter of speculation. The economic and social interests of th justices might well have subjectively influenced them at times to ac judge such youngsters somewhat below their true ages in order provide longer terms for their fellow planters, just as the conductoi identifying his interest with his company, might be at times impelle< to regard a child as older than he or his parent says he is. The Virgini Assembly in 1666 frankly admitted that it was "Sensible that no infally ble Judgement of Age can be given."10 Those coming in without inj dentures, especially by the eve of the Revolution, were somewhat mora mature. The average age of bound labor coming to Maryland or Via ginia between 1773 and 1776 from Great Britain was the early or middle) twenties. Relatively few redemptjoners as young as fourteen or fifteen are found in the passenger lists for this period; the few in their lata forties were generally skilled workers.11
Child labor was as basic to the colonial labor system as it was to the industrial system of contemporary England. The children of the Palatines who had been shipped to New York to manufacture naval stores were expected by the authorities to help the adults in the project bj gathering wood and boiling pitch and rosin, in which task, "the chil dren from eight years and upwards" were expected to be "usefully i ploy'd." 12
Compensation. Aside from food, clothing, and lodging, the indentured servant normally did not receive compensation during his period of service, although occasionally annual wages were specified in the articles. Such cases are, however, hardly distinguishable from free laborers working for annual wages.13
Hebraic law as well as English custom may well have influenced some of the colonies in the matter of compensation to servants. Under the Biblical law the servant was to serve six years and in the seventh "go out free for nothing," but the master was enjoined to provide liberally for his servant at the end of his term.14 The Massachusetts codes provided that "all servants that have served diligently and faithfully to the benefit of their Masters Seven years shall not be sent away emptie,"15 an injunction also incorporated in the later Duke's Laws.16
In most colonies at the expiration of his term of service the servant was entitled by custom or statute to receive his "freedom dues." These dues universally included clothing for one year, and often tools, seed, arms, and some provisions as well. Thus, the Maryland act of 1639 provided that the servant was to receive
3 barrels of corn, a hilling hoe, and a weeding hoe and a felling axe and to a man servant one new cloth suit, one new shirt, one pair of new shoes, one pair of new stockings, and a new monmouth cap, and to a maid servant, one new petty coat and wastcoat, one new smock, one pair of new shoes, one pair of new stockings and the clothes formerly belonging to the servant.17Specifications changed from time to time.18
The assertion is not infrequently made that freedom dues included! a grant of land to the servant. Plymouth was noteworthy for her emphasis upon such land grants. The authorities ordered in 1634 that whereas by indenture many are bound to give their servts land at the expiration of theire terme, it is ordered, that they haue it at Scituate, or some other convenient place, where it may be useful!."19 But only two years later the colony enacted that masters make good their covenants to give servants land "out of theire proper lands, the countrey being free from any such engagement."20 However, there is some evidence to show that land grants continued to be given by the towns in which servants lived and were received as inhabitants.21 This early practice died out in New England. The author of a currency tract in 1716 suggested that, in order to attract good men to come over as indentured servants, a homestead policy be adopted of giving immigrants fifty- or sixty-acre tracts, but this suggestion was not carried out in Massachusetts. In Pennsylvania, Penn proposed that servants be allotted fifty acres at the end of their term, for which they were to pay a quitrent of 2s. annually and the masters an additional fifty at a rental of 4s. If the master were obliged to allot the servant the fifty acres out of his own lands by reason of indentures, he was then to receive the entire one hundred acres at a rental of 6s. per annum.23 This practice appears to have been discontinued by the proprietor around 1700.24
In Maryland for a time servants were also entitled to receive as freedom dues fifty acres of corn.25 However, by the terms of the act passed in 1663 the allowance of land ceased to be obligatory, and in the course of events relatively few servants appear to have taken out patents upon completing their service.26 It was reported in 1698 that servants, upon finishing their terms, received "all necessities sufficient for one year." Those that were industrious were expected to purchase land; no prpvision was to be made for the improvident.27
In the early years of settlement in Virginia servants coming ove'r were given land as well as tools and clothing.28 However, by 1627 it seems apparent that no lamd was given to servants at the end of their terms.29 Instead, leases for years were proposed.30 Instructions were grvcn to the governors from time to time to issue patents to servants for fifty acres of land at the end of their terms;31 but, as Bruce points out, there is no evidence that these instructions were eyer translated into established procedure or that the General Assembly ever passed any legislation to carry them out.32 George Cabell Greer has collected the names of some 25,000 immigrants brought over to Virginia by patentees, and, on the basis of his examination of the Land Office records at Richimond, asserted that the great majority of these immigrants do not appear as patentees.33
The Carolina Concessions of 1665 offered to every Christian servant already in the colony forty acres at the expiration of his or her period of service. Those coming in later were to have smaller amounts. Two years later the acreage was raised to fifty, and to one hundred in 1699. This offer is not mentioned in later instructions.34 The situation in Georgia must be considered as exceptional, as the bulk of the indentured servants coming over in the early years were bound to the trustees. From twenty- to fifty-acre lots were laid out for servants "newly out of their times," depending on the period. In addition, they were to receive a cash allowance, cattle, and working tools. Such allowances also seem to have been made to parish apprentices and German redemptioners, and, finally, to all servants.35
In Florida such leading importers of labor as Denys Rolle and Dr. Turnbull added very substantially to their holdings through the head-right system. Although the latter transported some fourteen hundred bound servants from the Mediterranean region to British East Florida, promising them half of the produce they raised and ultimately plots of land, Governor Tonyn's agents made it clear to them that, as they were Catholics, they would not get title deeds to their lands, Protestant settlers being specified in the grants.36
In at least 90 per cent of the cases which arose in the colonial courts involving freedom dues, clothes and tools were awarded, but a grant of land was neither regarded as an obligation under the contract nor required by custom.37
The freedom dues might be commuted by money payments ranging generally from £4 to £6 in cash.38 In the Northern and Middle colonies the indentures at times provided for cash payments at the end of the servant's term.39
As the weight of the evidence proves conclusively that freedom dues did not as a general rule include land, they should be carefully distinguished from headrights, generally fifty-acre land grants to importers or masters for the transportation of an emigrant. The extensive use of the headright system to encourage the emigration of white labor proved a boon to the Southern landed proprietors, who through this means were able to add to their holdings materially.40 Actually, however, the headright system fostered speculation in land warrants and often raised the price of land beyond the means of servants who had worked out their time. Owing to the fraudulent and haphazard workings of the system, it was finally abolished in Maryland and Virginia. This action had the effect of separating land policy from labor policy in the tobacco provinces.41
Behind the colonial custom of freedom dues was the determination that servants should not become a public charge when dismissed. Masters had a responsibility to the community to see that their servants were in fit condition to support themselves at the expiration of their term. The South Carolina Code of 1744 in emulation of West Indian legislation, went even further, and provided that, where a sick servant was dismissed by a master under pretense of freedom and died for want of relief, the master was subject to a penalty of £20 proclamation money for the use of the parish.42
Generally it was stipulated in covenants of indenture that in consideration of the agreement to be bound for a stated term of years masters would pay their servants' passage or give them food and clothing. Seldom was the issue of consideration raised by litigants to annul such a contract. The Maryland courts were the scene of protracted litigation over the articles of indenture of Hester Nichols, bound in 1659 at the age of ten or eleven by her father, an impoverished planter, to Thomas Cornwallis, a leading settler. A few months later Cornwallis went to England and, instead of taking the girl with him, sold her before his departure to a certain Thomas Nuthall. Upon petition of the father that Cornwallis, in so doing, had violated his agreement to care for the child as if she were his own, a jury ordered the girl released.43 Cornwallis then appealed the case on the ground of error to the Upper House of the General Assembly in 1663, claiming that the girl had been bound by ordinary indentures. The Upper House sent the case to the Court of Chancery on the ground that, as it involved an interpretation of a contract, it should not have been tried before a jury.44 Before Chancery the girl's father urged that the indenture be declared invalid because no consideration was named in it. By a vote of three to two the court upheld the indenture and required Hester to serve out her seven-year term. The minority held it invalid for want of consideration allowed at the expiration of the term and also because Hester had not been bound before a magistrate.45
Enforcement of the Contract. The master's quasi-proprietary interest in the contract with his indentured servant was more substantial than with a free laborer. Hence, the courts readily decreed specific performance of such contracts on the part of the servant. Masters were concerned with seeing that redemptioners fulfilled contracts signed abroad and that servants in the colonies remained at their tasks until the end of their contracted terms. The first Assembly of Virginia enacted in 1619 that
whatsoeuer servant hath heretofore or shall hereafter contracte himselfe in England, either by way of Indenture or otherwise, to serve any Master here in Virginia and shall afterward, against his said former contracte depart from his Mr without leave, or, being once imbarked shall abandon the ship he is appointed to come on, and so, being left behind, shall putt himselfe in the service of any other man that shall bring him hither, that then at the same servant's arrival here, he shall first serve out his time with his former Mr according to his covenant.46If a servant quit without legal grounds before the expiration of his term, the court generally ordered him to serve out the remainder of his term, although the master might be cautioned to provide suitable living conditions.47 Failure to obey such an order might involve a substantial penalty.48 The court might choose to require the servant to post bond for the nonperformance of the court order.49 Suits for damages were rarely brought against servants for nonperformance of their covenants, for servants were likely to be judgment-proof.50 Specific performance, in fact extra service, might be exacted of servants for nor performance of their contracts under an early Massachusetts law which provided that
if any [servants] have been unfaithfull, negligent or unprofitable in their service, nothwithstanding the good usage of their masters, they shall not be dismissed, till they have made satisfaction according to the judgement of authority.51
Modification of the Terms of the Contract of Employment. The articles of indenture might be modified by mutual consent.52 But as many servants were minors, illiterates, or ignorant of the English language the authorities sought to prevent ship captains from fraudulently inducing redemptioners to agree to a modification of their indentures once they were aboard ship53 and to prevent masters from exercising undue influence in modifying an original contract or from making a second contract with their servants before the first term had been completed by providing that any indentures made after the original term of service had been entered upon would require the approval of the court.54 This applied also to releases, and to transfers of the servant or apprentice55 to other trades on the ground, for instance, that the one to which he had bound himself was detrimental to his health.56 If a second contract had been made without the approval of the court, it was held void.57 A Maryland county court held it to be "Contrary to the Lawe of this Province, that any Master should make any bargain With any servant for any time Longer not Untill his first time of servitude be fully Expired."58 In Maryland masters were subject to criminal prosecution for forcing their servants to sign indentures before they had gained their freedom.59 In South Carolina contracts made with servants during the period of their original indentures were declared void.60 In West Florida a bargain made with a servant during the period of his indenture to increase his term of service was not binding.61
1 See Hurd, Law of Freedom and Bondage, I, 220.
2 In the indentures registered before the Philadelphia mayors for the two years, 1745, 1746, 707 out of a total of 1,904 indentures recorded were for four years, 211 for five years, and a scattering remnant from two years up to nineteen years. See "Register before James Hamilton, Mayor," Pa. Mag. of Hist. and Biog., XXXII, 358; "Record of Indentures before Mayors," Pa. German Society, Publications (Lancaster, 1907); Herrick, op. cit., pp. 200, 201.
3 Assistants, II, 15 (1631). For examples of one-year indentures, see Ulster Dutch Transcripts, II, f. 303 (1666); II, f. 432 (1679); III, f. 9 (1683). Typical terms of service of six years or more: Lechford, Note-Book, p. 93 (1639); Plymouth Col. Rec., II, 69 (1644); Essex, I, 381, 382 ('655), II, 293 (1661); Israel Fearing's Book, cited by Bliss, Buzzard's Bay, pp. 71, 72 (1729); Essex, Va., O.B., 1695-99, fols. 248, 269 (1699); Henrico, Va., O.B., I, f. 337 (1685); Surry, Va., O.B., 1645-72, f. 282 (1664).
4 See Assistants, II, 84, 88 (1639), 100 (1640), 105 (1641), 106 (1641), 135 (1643).
5 Pennsylvania. Those over 17, 5 yrs.; under 17, until 22. Duke of York's Book of Laws, p. 153. Minors, male until 21; female until 18. Pa. Stat. at Large, VII, 361-363 (1770).
Maryland. Md. Arch., I, 80 (1639), 352, 353 (1654), 409, 433-434, 453-454 (1661). The act of 1666 provided service of five years for those over 22. By the act of 1704 servants between 15 and 18 were to serve 7 yrs.; between 18 and 22, 6 yrs., and under 15 until 22. ibid., II, 147 (1666), 335 (1671); XXVI, 254 (1704).
Virginia. 1643: over 20, 4 yrs.; between 12 and 20, 5 yrs., under 12, 7 yrs., Hening, I, 257. 1653: above 16, 4 yrs.; under 15 until 21, ibid., p. 257. 1662: above 16, 5 yrs.; under 16, until 25, ibid., II, 113. 1666: under 19, until 24; 19 or above, 5 yrs., ibid., II, 240. Similarly in 1705 and 1745: ibid., III, 447, V, 457, VI, 357-369 (1753). For a brief period Virginia discriminated against Irish servants and other aliens who were required to serve somewhat longer terms. Hening, I, 411 (1655), 471 (1658). As this served to discourage emigration, it was soon repealed. ibid., pp. 538, 539 (1660).
South Carolina. 1687: under 10, until 21; between 10 and 15, 7 yrs.; above 15, 5 yrs., S.C. Stat., II, 30. 1698: 12 to 14, until 21; 14 to 16, 7 yrs.; above 16, 5 yrs., ibid., p. 153. Repealed, 1700, p. 165. The original of the act of 1683 listed by title in Trott's Laws of S.C., pp. 1-3, has not been located.
Barbados. 1661: under 18, 7 yrs.; above 18, 5 yrs. Hall, Acts of Barbados (London, 1764), No. 30, cl. xiv.
Jamaica. 1681: under 18, 7 yrs.; above 18, 4 yrs. Baskett, Acts of Jamaica (London, 1738), pp. 2-5.
Antigua. 1716: under 17, until 21; 7 yrs. maximum term for indentured servant; without indenture and age certificate from JP, 4 yrs. Laws of the Island of Antigua (London, 1805), I, 184; Baskett, Acts of Charibee Leeward Islands, 1690-1730 (London, 1734), p. 160.
6 The Virginia General Court freed a servant because his age had not been adjudged in court. Va. Gen. Court Mins., p. 385 (1674). Eighteenth century statutes did not go that far, but provided that the servant be brought into court within six months after his arrival or else be required to serve no longer than five years. Hening, III, 447 (17,05); V, 547 (1748); VI, 357-369 (1753). Under Maryland law a master failing to bring his servant into court within three months after arrival was to lose a year of the servant's term. Md. Arch., I, 443 (1662). A penalty of 1,000 lbs. of tobacco was fixed in the act of 1666. Ibid., II, 147.
7 Hening, III, 447 (1705).
8 See J. C. Hotten, The Original Lists of Persons of Quality: Emigrants; Religious Exiles; Political Rebels; Serving Men Sold for a Term of Years; Apprentices, etc., Who Went from Great Britain to the American Plantations, 1600-1700 . . . (London, 1874), pp. 201-265; Bruce, Econ. Hist, of Va., I, 600, 601. See also Va. Gen. Court Mins., p. 430 (1676).
9 Typical instances follow.
New Jersey. Burlington, West Jersey, Court Book, fols. 56 (1686, age 12), 172 (1699).
Pennsylvania. Pennypacker, Pa. Col. Cases, p. 115 (1686, age 26); Chester Co. Court Rec., 1681-97, pp. 300, 355, 361, 374, 393 (1693-1696), average age 14; Bucks C.P., lib. 1684-1730, f- 341 (1699), age 10.
Delaware. Kent Co. Court, lib. 1697-98, fols. 13a, 18a, 32a; 1699-1703, fols. 1, 4a, 14a, 21, 24, average age 14.
Maryland. In 249 cases studied in the Md. Arch., LIII, LIV, only 10 servants were adjudged 21 yrs. of age or over; 51 were under 15; 12 were under 10, and the remainder between the ages of 15 and 20. The average period of service was 6 to 7 yrs. Of 11 cases noted in Baltimore Co., lib. 1683-84, the average age adjudged was 15 (Baltimore, lib. D., 1682-86). This was average also in 65 instances noted in Charles Co. court records, 1665-76 (Charles, lib. 1665-68, 1668-70, 1670-74, 1674-76, passim); and of the 19 cases noted in Prince George (lib. A., 1696-1702, lib. B, 1699-1705, passim), a slightly lower average was noted in the scattering instanci in the 18th century Queen Ann records (Queen Ann, lib. 1709-16, 1728-30, 1735-39, passim). The average was between 14 and 15 in the 84 instances noted in Talbot Co., 1685-1705 (Talb lib. NN, No. 6; AB, No. 8; RF, No. 10, passim). The average is close to 14 yrs. of age in the 84 instances noted in Somerset Co. between 1671 and 1701, with one lad as young as 7 (Somerset, lib. 1671-75; lib. LO-7, 1689-90; 1690-91; 1692-93; 1693-94; 1698-1701, passim).
Virginia. Out of 43 cases adjudged in the Henrico court between 1677 and 1692 the average age was about 12; some of the children adjudged were Indians (Henrico, lib. I, II, passim). The average was closer to 14 in Lancaster (lib. 1656-66, passim), and to 15 in Middlesex (lib. 1673-80, 1680-94, passim) and in Rappahannock (lib. 1686-92, passim). Of 32 servants adjudged in Northumberland in the years 1668-1670, the average age was 13; 48 youngsters adjudged in 1675 ran from 13 to 18, and the average age of 16 servants adjudged in 1699 was 15 (Northumberland, lib. 1666-78, fols. 19, 49, 125; 1699-1713, Pt. I, f. 1). The average age was close to 14 in York County between 1657 and 1704 (see York, lib. 1657-62, 1664-72, 1671-94, 1675-84, 1684-87, 1697-1704, passim).
North Carolina. N.C. Gen. Court Mins. (1684), 15 yrs. old.
10 Randolph MSS, VMH, XVII, 233, 234 (1666).
11 N.E. Hist, and Gen. Register, LXII-LXV, passim. The average age of the 85 servants in the twelve years 1772-74 at "Northampton," a plantation in Baltimore Co., was estimated at 25-27 years. W. D. Hoyt, Jr., "The White Servants at 'Northampton,' " Md. Hist. Mag. (June, 1938), p. 129.
12 CSPA, 1710-11, No. 872 (1711); 1711-12, No. 210, p. 175 (1711). For lists of children brought over in the Palatine emigration to New York, see Knittle, Early Palatine Emigration, pp. 243-299. As many as nine children were brought over by individual families. Emigrant families with seven children were by no means unusual. Childless couples were in a distinct minority.
13 Lechford, Note-Book, p. 251 (1639); Plymouth Col. Rec., II, 6 (1641); New Haven Col. Rec., 1638-49, p. 321 (1647); WMCQ, 1st ser., XIII, 224 (1772), £10 a year the two last years. An unusual arrangement permitted the servant two days a week to work for himself. Lechford, Note-Book, pp. 307, 308 (1640). Wages at the rate of 10s. per week were allowed in one Maryland contract in consideration of the servant's former service. Md. Gazette (Annapolis), Dec. 16, 1773.
14 Exod. 21:2; Deut. 15:12-14.
15 Laws and Liberties, 1648, p. 39; Mass. Col. Laws, 1660-72, p. 175.
16 N.Y. Col. Laws, I, 47.
17 Md. Arch., I, 80 (1639).
18 Cf. Duke of York's Laws and Laws of Pa., p. 153; Pa. Stat. at Large, II, 54-56; J. C. Ballagh, White Servitude in the Colony of Virginia (Baltimore, 1895), p. 62; N.C. Col. Rec., XXIII, 63 (1715), 196 (1741); Cooper, S.C. Stat., II, 30 (1687), III, 621-629 (1744); Simpson, Practical Justice of the Peace, p. 236. Laws of the Island of Antigua (London, 1805), I, 84; Baskett, Acts of the Charibbee Leeward Islands (London, 1734), p. 160 (1716).
Deerskin, leather, or homespun breeches, a drugget or fustian coat, and a dimity jacket were the characteristic apparel of the servant class. See Boston Gazette, June 17-24, 1728, August 17-24, 1737; Boston News-Letter, Dec. 30-Jan. 6, 1737. An unsuccessful attempt was made in Parliament in 1699 on behalf of the feltmakers' trade to require all women servants in England and the plantations whose wages did not exceed £5 a year to wear felt hats. The decline of the hat industry was attributed to the disuse of such hats "among women of inferior quality." Stock, Proc. Brit. Parl., II, viii.
19 Plymouth Col. Rec., I, 23 (1634).
20 Ibid., XI, 188 (1636). The amount of land to be granted was limited to 5 acres per servant. Ibid., I, 44 (1636).
21 Ibid., II, 16 (1641), 69 (1644); III, 216 (1661); IV, 19 (1662), 75 (1664), 128 (1666); V, 125, 126 (1673); VI, 18 (1679), 55 (1680). Apparently in some cases some nominal payment was expected of the old servants. Sometimes the master agreed to give 50 acres. Ibid., VI, 4 (1679). Such rights of servants to land could be assigned for a consideration, ibid., I, 43 (1636); as punishment, an unruly servant might be deprived of his right to land "except hee manefest better desert." Ibid., p. 64 (1637).
22 A. McF. Davis, Colonial Currency Reprints, 1682-1751 (4 vols., Boston, 1910-11), I, 335-349; F. J. Turner, "Frontier of Massachusetts," Col. Soc. of Mass., Publications, XVII, 266. However, see indentures of redemptioners, Elizabeth McMeans and her son, dated June 15, 1730. Essex Inst. Hist. Coll., LVIII, 264.
23 Pa. Arch., 4th ser., I, 20 (1681).
24 Herrick, op. cit., p. 33. Under the original warrants of surveys whole townships were set apart as "Servants or headland." Approximately 4,500 acres were surveyed and granted "to sundry servants of the first purchasers and adventurers into Pennsylvania." Geiser estimates on the basis of the available records that the bound servants were one sixth as numerous as the first purchasers. Geiser, op. cit., pp. 25, 26. Seventy-five acres were offered in New Jersey in 1665 to every Christian servant at the expiration of his or her term of service. N.J. Hist. Soc, Coll., I, 38. For a land grant at the expiration of articles of indenture, see Newtown, L.I., Rec, 1653-1720, f. I59, which appears to be a case of servitude for debt.
25 See Md. Arch., I, 97 1(1640); IV, 464 (1647). In 1648 the Provincial Court found that the custom of the country for servants' wages required: "one cap or hatt, one new cloath or frize suite, one shirt one pr shoes and stockins one axe one broad and one narrow hoe, 50 Acres Land, and 3 barrels Corne." Ibid., IV, 361 (1648). Fifty acres "according to the custom of the country" were considered to be part of the freedom dues by the Talbot County court as late as 1683. See Hughes' case, Talbot NN, No. 6, f. 1 (1683). But cf. Jane Robinson's petition, Md. Arch., XIII, 337 (1692).
26 See A. E. Smith, "The Indentured Servant and Land Speculation in Seventeenth Century Maryland," Amer. Hist. Rev., XL (1935), 467-472. See also Md. Arch., I, 97; II, 523 (1676); IX, 404-407 (1760); Kilty, Land-Holders' Assistant and Law-Office Guide, pp. 38-40, 55.
27 Md. Arch., XXII, 120 (1698).
28 Va. Gen. Court Mins., p. 138 (1626).
29 But see indentures of Thomas Titterton, a redemptioner (1649), Essex Inst. Hist. Coll., LVIII, 263.
30 Ibid., p. 135 (1627).
31 See instructions to Lord Culpeper, 1681-82, VMH, XXVIII, 45; also Hening, III, 304 (1705); VMH, XXI, 232 (1715).
32 Bruce, Econ. Hist. of Va., II, 42, 43; but see contra Ballagh, White Servitude in Va., pp. 85-87, who contends that servants were entitled to enter a legal claim to the land on the basis of the instructions. In exceptional cases land might be offered by the master to induce the servant to agree to an extension of his term, as was the case in an agreement made by Colonel Alexander Spotswood with his servant to serve him two years extra in return for "land to marry" and £5 in goods at a store "in money rates" as well as clothing. Spotsylvania O.B., 1730-38, f. 271 (1733).
33 G. C. Greer, Early Virginia Immigrants (Richmond, 1912). For instances of convict servants acquiring estates, see Tyler, Mag., VIII, 6; WMCQ, 2d ser., II, 157-161.
34 For "industrious and usefull" service to the colony, two servants were awarded 10 acres each in 1671. S.C. Grand Council J., p. 7; also N.C. Col. Rec., I, 334; A. F. McKinley, The Suffrage Franchise in the Thirteen English Colonies in America (Philadelphia, 1905), p. 123. However, J. S. Bassett, Slavery and Servitude in the Colony of North Carolina (Baltimore, 1896), pp. 78, 79, claims that it was allowed as late as 1737 and perhaps later, although actually such instances must have been exceptional.
35 Ga. Col. Rec. ., I, 405 (1742), 535 (1749), II, 14, 16, 18, 24, 35, V, 479, VI, 54 (1742); Stock, Proc Brit. Parl., V, 86, 87 (1741). For an instance where land does not appear to have been granted to servants of the trustees, see Ga. Col. Rec. , VI, 13 (1741).
36 C.O. 5:552, pp. 111-112; W. H. Siebert, "Slavery and White Servitude in East Florida, 1726-1776," Fla. Hist. Soc. Q., X (1931), 8, 18, 19.
37 In New England merely double or "necessary" apparel was customarily awarded. See Plymouth Col. Rec., I, 20 (1633); Essex, IV, 112 (1669), 261 (1670), VII, 73 (1678); Mass. Arch., Vol. 105 (Petitions, 1643-1775), fols. 81, 82 (1722); Washburne v. Washburne, Plymouth C.P., I, f. 387, double apparel and tools; R.I. Col. Rec., III, 202 (1686); Warwick, R.I., Rec., p. 318 (1666).
For early New York see R.N.A., V, 171 (1664), 191, 192 (1665); Albany, Rensselaerswyck, and Schenectady Court Mins., II, 321, 322 (1678); Gravesend Town Rec, IV, 1662-99, f. 8 (1663), in addition to double apparel, "a cowe calfe." Clothing and occasionally provisions were customarily allowed in Pennsylvania. See, e.g., Chester Co. Court Rec., pp. 293, 294 (1693). Lancaster Road and Sess. Docket, No. 2, 1742-60 (1753). Dillworth v. Anthony, Philadelphia Co. Court Papers (c. 1715). Philadelphia Q.S., lib. 1773-80 (1774); 1779-82 (1780); 1780-85 (1780). West Chester Q.S., lib. 1742-59, f. 19 (1743). For emphasis on working tools, see Burlington, West Jersey, Court Book, f. 52 (1686); Turner, Some Records of Sussex County, Del., p. 66 (1682); Kent Co., Del., Court Rec., lib. 1699-1703, f. 1 (1699).
In Maryland corn, clothes, and tools rather than land were invariably dispensed. By act of 1699 3 gun was substituted for the three barrels of Indian corn. See Md. Arch., XXII, 445, 546-553 (1699); CSPA, 1699, No. 655, p. 349; 1702, No. 1117, p. 701. See also Md. Arch., X, 247, 255 (1652), 334 (1653), 565, 566 (1665); LIII, 185. Ann Arundel, lib. 1702-4, fols. 44 (1703); 1704-8, fols. 301 (1706), 734 (1708). Charles, lib. 1670-74, f. 47 (1671); 1678-80, fols. 43, 44, 214; 1688-89, f. 195 (1690). Frederick, lib. 1750-51, f. 294 (1751). Prince George, lib. A., 1696-1702, f. 58 (1696); lib. B, 1699-1705, f. 152 (1702); lib. C, 1702-8, f. 77 (1706); Queen Ann, lib. 1709-16, fols. 82, 114 (1710), 157 (1711), 170 (1712). Somerset, lib. 1690-92, f. 1 (1688), 1692-93, f. 49 (1692), 1730-33, f. 27 (1730). Talbot, lib. NN, No. 6 (1689); 1703-4 (1704).
Virginia generally gave merely apparel and provisions. See, e.g., Va. Gen. Court Mins., pp. 75, 98 (1625), 214 (1670), 294 (1672), 349 (1673), 367, 377 (1674), 432 (1676), 466 (1640). In 1672 the General Court set one servant free "provided that when he comes to demand his Corn and Clothes, he be whipt and receive 39 lashes." Ibid., p. 297. See also Accomac O.B., I, fols. 33 (1636), 315 (1644), 1671-73 (1671, passim). Charles City O.B., 1655-65, fols. 81 (1657), 390 (1663). Elizabeth O.B., 1684-99, f. 247 (1692). Henrico O.B., II, f. 229 (1689); III, f. 134 (1697). Lancaster O.B., 1656-66, fols. n 1 (1660), 251 (1663). Northampton, lib. I (1661). Prince George, lib. 1737/8-40 (1738); VMH, V, 278. Rappahannock, lib. 1683-86, fols. n (1684), 69 (1685). Richmond, lib. 1692-94, fols. 67 (1693), 127 (1694). Spotsylvania, lib. 1730-38, f. 423 (1735). York O.B., 1657-62, f. 48 (1658), in addition to clothes, the bed, rug, and blankets which he used during his term; ibid., 1671-94, fols. 219 (1675); 1675-84, f. 146 (1679); 1690-94, f. 144 (1692); 1697-1702, f. 1 (1697). Westmoreland, lib. 1675/6-88/9, f. 219 (1681).
In North Carolina corn and clothes were invariably awarded. N.C. Gen. Court Mins., lib. 1695-1721, f. 314 (1705); New Hanover, lib. 1740-1814, f. 101 (1740); Perquimans, lib. 1689-1693 (1689).
38 Chester, Pa., Court Rec., 1681-97, p. 348 (1695); Lancaster, Pa., Road and Sess. Docket, No. 4, 1768-76 (August, 1772); Philadelphia Q.S., lib. 1773-80 (June, 1779), 1780-85 (Sept., 1781); West Chester Q.S., lib. B (1771-1776); York, Pa., Q.S., lib. XII, 1779-81, f. 228 (1781); Md. Arch., IV, 271 (1644); Prince George, Md., Co. Court, lib. 1782-84 (August, 1783); Hening, VI, 357-369 (1753), VIII, 547-558 (1748), £3 10s. current; Bruce, Econ. Hist, of Va., II, 42; Cartaret, N.C, 1747-64, f. 11 (1749); Onslow, N.C, lib. 1749-65, f. 27 (1754); Pasquotank, N.C., Mins., 1737-55 (1746). See also Gray, op. cit., I, 365, 366. During the currency depreciation of the Revolutionary period freedom dues were occasionally valued as high as £30. See also Geiser, op. cit., p. 72.
39 Plymouth Col. Rec., I, 35 (1635), 103 (1638), II, 82, 83, 89 (1645), VI, 25 (1679); Warwick, R.I., Rec., pp. 310 (1665), 334 (1667); Stokes, Iconography, IV, 262 (1667). Under West Florida law a servant who had served at least four years was to be given a new suit of apparel and 30s. sterling at the end of his term. Johnson, op. cit., p. 179.
40 See Gray, op. cit., I, 386-391. The Virginia order books are replete with instances of substantial grants to planters for importing servants.
41 E. I. McCormac, White Servitude in Maryland, 1634-1820 (Baltimore, 1904), pp. 22, 26; Hansen, The Atlantic Migration, 1607-1860 (Cambridge, 1940), p. 44.
42 S.C. Stat., III, 621-629 (1744). See also supra, pp. 17, 18. However, a servant recovering on a judgment for freedom dues was not necessarily treated as a preferred creditor. See Va. Gen. Court Mins., p. 300 (1672).
43 Md. Arch., XLI, 515-516.
44 Ibid., I, 463-466, 481.
45 Ibid., XLIX, 137 (1664). For cases where the courts voided indentures without formal or token consideration, see Va. Gen. Court Mins., p. 103 (1626); Henrico O.B., lib. V, fols. 409 et seq. (1693).
46 L. G. Tyler, ed., Narr. of Early Va. (New York, 1907), pp. 273, 274.
47 Me. Prov. and Court Rec., II, 66 (1658), 372 (1661); Assistants, I, 221 (1682), II, 100 (1640); Essex, I, 197 (1650); R.N.A., V, 217 (1665); Rensselaerswyck Court Mins., 1648-52, p. 24 (1648); Newtown, L.I., Court Rec., f. 49 (1665); Chester Co., Pa., Court Rec, 1681-97, pp. 211, 212 (1690); Md. Prov. Court Rec, lib. 1684-87, f. 68 (1684), 1692-93, f. 329 (1692); Ann Arundel, lib. 1704-8, f. 401 (1706); Charles, lib. 1682-84, f. 128 (1683); Queen Ann, lib. 1709-16, f. 252 (1713); Somerset, lib. 1671-75, fols. 42-45 (1671-72), 1692-93, f. 7 (1692); Talbot, lib. RF, No. 10 (1705); Va. Gen. Court Mins., p. 413 (1675); Accomac O.B., II, f. 319 (1644), 1663-66, f. 73 (1664), 1666-70, f. 12 (1666), 1671-73 (1671); Henrico O.B., I, 1677-92, f. 209 (1688), 1710-14, fols. 12 (1710), 89 (1711), 184 (1712); Spotsylvania O.B., 1724-30 (1730); Westmoreland O.B., 1675/6-88/9, f. 391 (1685); York O.B., 1697-1704, f. 134 (1699); Craven, N.C., lib. 1757-62 (1759), S.C. Grand Council J., 1692, pp. 34, 35.
48 The Plymouth court ordered a servant to serve out the remaining three years of his term under penalty of a public whipping and of "being forced to returne to his said master." Bartlett v. Cooper, Plymouth Col. Rec., IV, 154 (1667). See also Rensselaerswyck Court Mins., 1648-52, p. 29 (1648). Under New York law the apprentice or servant refusing to serve could be committed to bridewell or the county gaol, there to remain until he agreed to serve. 1 R.L. 137 §:6; New Conductor Generalis (Albany, 1819), p. 30.
49 £5 sterling security in Va. Gen. Court Mint., p. 466 (1640). The employer was permittee to keep an Indian's gun until the Indian had broken up twenty rods of land in accord with his contract. Powas v. Potts, Plymouth Col. Rec., IV, 183 (1668).
50 However, in 1626, in lieu of a year's service due him by indentures, one master was awarded 360 lbs. of tobacco and the servant's corn crop, except for a small amount "to be allowed foe his victualls." In addition, the servant was ordered either to deliver up his indentures "or to come in lieu a tenant uppon his land." Va. Gen. Court Mins., p. 131 (1626). See also Rochford v. Hickman, Chester, Pa., Court Rec., 1681-97, pp. 52, 53 (1685), where judgment was awarded against a third party who had in his possession some goods belonging to the delinquent servant As to whether actions of covenant could be brought against minor apprentices at common law, see Burn, Justice of the Peace Abridgment (Boston, 1773), p. 18.
51 Mass. Col. Laws, 1660-72, p. 175.
52 See Lechford, Note-Book, p. 393 (1641).
53 See Petition of Wimpy et al., Queen Ann, Md., lib. 1718-19 (1718), where a group of redemptioners were induced to give up their indentures in return for a promise to pay each of them 40s. While the court voided their second indentures, it ordered them to serve their respective masters five years each instead of four years as they had originally agreed. A 13-year-old lad was ordered to serve according to the act of Assembly. See also York, Va., lib. 1664-72, f. 455, contract held void; Lancaster, Pa., Road and Sess. Docket, No. I, 1729-42, f. 12 (1730), referred to 3 arbiters. See also Va. Gen. Court Mins., p. 12 (1623); New Haven Col. Rec., 1638-49, p. 58 (1741).
54 See Hill v. Whitehead, New Haven Co. Court Rec, lib. I, f. 99 (1677). Cf. also Md. Arch., XLIX, 220, 221, 237-238, 265, 380 (1664). In Virginia in the early years a release, if properly attested, need not have the court's approval to be valid. Va. Gen. Court Mins., p. 131 (1626) Coleman's case, Accomac O.B., II, f. 221. In the later period, however, such modifications of the original terms required the court's approval. Hening, II, 388 (1677). See Accomac O.B., 1666-70, f. 47 (1670); Botetourt O.B., 1770-71, Pt. II, f. 490 (1771); Goochland O.B., WMCQ, 1st ser., V, 109, no (1737, 1738). See also Lancaster O.B., 1656-66, f. no (1660), extra service of one year for lacking in skill as a cooper; 1666-80 (Sept. II, 1667). VMH, XII, 294 (1684), extra service in consideration of servant's being permitted to work at the corn crop instead of in the tobacco fields. Northumberland O.B., 1699-1713, Pt. II (1703).
55 Ryder's case, Gravesend Sess., Gravesend Court Rec., II, f. 143 (1681).
56 New Haven Co. Court Rec, I, f. 117 (1697).
57 Wheadon v. Meiggs, New Haven Col. Rec., II, 250-253; Hughes's case, Westmoreland O.B., 1662-64.
58 Charles Co., Md., lib. 1678-80, f. 247 (1680). See also Prince George, Md., lib. 1696-1702, f. 469 (1699).
59 Cases of Sterrett and Alexander, Somerset, 1689-90, f. 87 (1690).
60 S.C. Stat., III, 621-629 (1744).
61 Cecil Johnson, op. cit., p. 179.