Richard B. Morris, Government and Labor in Early America, 1946.
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The abovesd Wryting is a true Coppy of the originall by Sam: Land and Robberd hutchinson produced in Cort and by their Request Recorded.
Under the circumstances it is not surprising to find that servants occasionally appear in court as creditors to press their legal claims. In one unusual instance a servant advanced to a third party a sum of "eighty pound in Cash," for which a mortgage was given on a windmill and farm.56 Even more unusual, perhaps, was the gift made in 1634 to his master by Robert Healing, bound to Thomas Young of Accomac, of a manservant he seems to have acquired from a merchant or ship's captain.57
When John Davis's will was probated in the Essex court, it revealed total cash gifts amounting to £32, of which £10 went to his "dame Clarke," 20s. to one of his master's daughters, and £5 to another.58 This was the exception, as inventories of servants' estates generally disclosed clothing rather than cash as the principal item.59
While sessions records reveal the seamier side of master-servant relations, the records of probate court and the old colonial will books are indicative of a more intimate and sympathetic relationship. Where a master left a bequest to a servant, it was not merely to comply with the letter of a contract of indenture, but an expression of responsibility and often of friendship and affection. Naturally this practice was not confined to the colonies. In the mother country it had been traditional to leave small bequests to household servants.60
First in order of objects bequeathed to servants was clothing, although money, land, tools, cattle, and freedom from indentures were frequently named. When Leonard Calvert, first governor of Maryland, died, he left some of his clothes to two of his servants.61 In 1665 William Thorne of Somerset County, Maryland, left his servant, John Richards, 300 acres of land, provided that he remained in the service of Mistress Thorne until he reached the age of twenty-one.62 When Thomas King of Exeter left his servant, William Willy, fifty acres of land, it was in fulfillment of an earlier promise.63 Most valued of all grants to a servant would be that of his or her "tyme of servitude."64 One Virginia planter at the end of the seventeenth century freed his servant and, in addition, left him £5, together with a silver tobacco box, wearing apparel, and other items.65
The Servant's Right to Engage in Business. In order to prevent employees from cheating their masters, from working for themselves on their masters' time, or from making outside contacts which might lead to enticement or undue competition, the colonies in general had strict curbs on unauthorized trading with other men's servants.68 Typical of the New England group was the order of the Massachusetts Court of Assistants as early as 1630 providing a fine and corporal punishment at the court's discretion for any person, man or maid, selling any commodity during his or her time of service without license from his or her master.87 A similar provision was included in New Haven's comprehensive law of 1656.68 The Duke's Laws, 1665, provided a fine or corporal punishment for any servant selling a commodity during the time of his service. The person buying from the servant would be compelled to restore the goods to the master and forfeit double the value thereof to the poor of his parish.69
A considerable number of qui tam suits were successfully brought in Maryland against persons who had unauthorized dealings with servants.70 By statute such persons were liable to substantial fines and the delinquent servants to corporal punishment.71 Virginia made those trading with servants liable to a month's imprisonment and security for good behavior, and, for the second offense, to four times the value of the articles traded.72 In 1672 the General Court of that province sentenced Richard Case for "private and underhand dealing" with the servants of another to make full satisfaction "according to the CVth Act of Assembly," and provided further that the order be entered in the minutes to serve as "a President to deterr others from doing the like and incurring the penalty of the said Act."73
Unauthorized trading with servants was forbidden in the rice and sugar colonies. In Barbados the trader would be liable to forfeit to the master treble the value of the goods traded and 500 lbs. of sugar.74 An Antigua law provided that 500 lbs. of tobacco would be forfeited to the master for such an offense and another 500 lbs. to the public treasury. Servants convicted of unauthorized trading would be "sevearly whipped."75 South Carolina set the extreme penalty of ten times the value of the goods purchased,76 and North Carolina provided that the sum of £10 would be forfeited to the master.77
Servants, unless specifically authorized by their masters, were under a disability to make valid contracts for their employers. They were treated in the law die same as minors and wards.78 Nevertheless masters could and did specifically audiorize their servants to buy and sell for them.79 However, in the absence of such specific authority the defendant might seek to avoid payment on the ground that he was an indentured servant when he contracted the obligation to the plaintiff.80
Occasionally servants were permitted to trade on their own accounts or to work for themselves.81 John Griggs, a "gentleman" of York County, Virginia, permitted his servant, Andrew James, to work for himself the following year, for which he was to pay his master a specified amount of tobacco and plant and tend to a stated number of corn hills. The master agreed not to hinder his servant in working at his trade of carpentry except during the time when he was expected to plant the corn.82 A Marylander permitted his servant, bound to him for seven years, "to have the Liberty and priviledge of practising as an Attorney in Baltemore County Court and the benefitt thereof to Convert to his own use" and further agreed not to require him to perform any "servile labor.83
1 Va. Co. Rec., II, 113 (1622); Winthrop Papers, IV, 105 (1639), 238, 239 (1640).
2 A few typical instances from the many available may be cited: N.Y.G.S., lib. 1732-62 (1759); Middlesex, N.J., Court Mins., lib. I (1689); Upland Court Rec., p. 102 (1678); Lancaster, Pa., Road and Sess. Docket, No. 4, 1768-76 (1774); West Chester, Pa., Q.S., lib. 1733-42, f- 112 (1737), lib. B. (1775); York, Pa., Q.S., lib. I, fols. I, 2 (1751); Sussex, Del., Rec., f. 182 (1683); Kent, Del., lib. 1699-1703, f. 82a (1703); Md. Arch., XLIX, 82-84 (1662), 331, 332 (1664); LIII, 599-600 (1665), LIV, 485 (1671), LX, 46-47 (1666); Md. Prov. Court, lib. 1679-84, f. 105 (1680); Ann Arundel, lib. 1702-4, fols. 618 (1704), 679 (1705); Cecil, lib. BY, No. 1, 1770-71 (1771); Charles, lib. 1720-22, f. 72; Prince George, lib. A, 1696-99, f. 6 (1696); Somerset, lib. AW, 1690-91, f. 43 (1691); lib. LO-7, f. 224 (1715); Talbot, lib. AB, No. 8, fols. 2 (1696), 196 (1697); Charles City, Va., lib. 1655-65, f. 604 (1665), court failed to sustain defense that the Negro servant had been disobedient, freedom granted; Henrico, Va., lib. II, f. 348 (1692); Lancaster, Va., lib. 1666-80, f. 193 (1671); Cartaret, N.C., lib. 1778-89, f. 43 (1783); S.C. Grand Council J., 1671-1680, pp. 62, 63.
3 Md. Arch., XXXVIII, 117 (1698). See also C. T. Bond and R. B. Morris, Proceedings of the Maryland Court of Appeals, 1695-1729 (American Legal Records, I) (Washington, D.C., 1933), p. xxv.
4 In Great Britain, the testimony of servants was admitted by 20 Geo. II, c. 19 (1747). Richard Burn, The Justice of the Peace (London, 1800), IV, 244.
5 But cf. Edmonds v. Pinner, Md. Arch., LIII, 592, 602 (1665). When Jacob Lumbro was presented for having brought an abortion upon his maidservant, Elizabeth Wilde, who charged him with responsibility for her pregnancy, he saved himself by marrying her, thus disqualifying her from appearing as a witness against him. Md. Arch., LIII, 1-li (1663). For an analogous case, see Smith's case, Pa. Col. Rec., II, 5 (1700). See also R. B. Morris, Studies in the History of American Law, pp. 197-199.
6 Sir Geoffrey Gilbert, The Law of Evidence (London, 1769), p. 138.
7 See, e.g., Philadelphia Q.S., lib. 1779-82 (April, 1780); Kent, Del., Court Rec., lib. 1703-17; Newcastle, Del., G.S., lib. 1778-93, f. 83 (1779). The court ordered one master who asked permission to dismiss an habitual runaway whom he described as acting "like vnto a runagate" to keep him until he could send word to the boy's father "and take further order with him about him." Barnes v. Wade, Plymouth Col. Rec., III, 126 (1657). See also supra, pp. 17, 18, 376, 377; Moravian Rec., II 714 (1772).
8 Md. Arch., I, 53 (1639), whipping at discretion; Hall, Acts of Barbados, pp. 35 (1661), double time lost, 157 (1703), whipping; N.Y. Col. Laws, I, 47 (1665), 3 mos. extra, 157 (1684), 6 mos. extra. See also Harvye's case, Lower Norfolk, lib. II, f. 62 (1644), 20 lashes; Davis, Justice of Peace (New Bern, N.C., 1774), double time lost.
9 This was Thomas Gerrard, Lord of St. Clement's Manor. Md. Arch., XLIX, 94, 122, 124, 136 (1663).
10 The order recited that several attorneys had managed servant causes "to the Mrs and Mrss greate charge and dammage." Md. Arch., LX, 496.
11 Howard v. Hanson, London Mayor's Court Briefs, 1698-1705 (c. 1704), Guildhall. 12CSPA, 1722-23, No. 190, p. 91 (1722).
13 In early Massachusetts and in the old New Haven colony, freemen were also required to be church members, but in the former a property qualification was substituted under the royal charter. The Connecticut regulation of 1659 established a qualification of £30 of "proper personal estate." See C. M. Andrews, Col. Period of Amer. Hist., II, 104, 117; Osgood, Amer. Col. in 18th Century, III, 127.
14 Property qualifications ranged from 50 to 100 acres of land or real estate or personalty worth from £40 to £60 or yielding 40s. income. The Pennsylvania Constitution of 1776 provided for manhood suffrage. For the property qualifications in general, see A. E. McKinley, The Suffrage Franchise in the Thirteen English Colonies (Philadelphia, 1905); C. F. Bishop, History of Elections in the American Colonies (New York, 1903).
15 Hening, I, 112. This was far in advance of England. Even the Levellers, who favored working class reforms, proposed that servants and those who received alms be barred from the suffrage. D. M. Wolfe, Leveller Manifestoes of the Puritan Revolution (New York, 1944), pp. 402, 403.
16 Ibid., p. 411.
17 Hening, II, 220. During Bacon's Rebellion this act was repealed (ibid., p. 425), but at the end of the uprising the property requirement was restored.
18 Va. Hist. Soc., Coll., New ser., II, 1; WMCQ, 1st ser., VII, 67.
19 WMCQ, 1st ser., VII, 67; 2d ser., VII, 258 (1776). See also Osgood, op. cit., II, 249, 250.
20 Hening, V, ch. xxvi (1742); VI, 262 (1752). See also WMCQ, 2d ser., VII, 258.
21 Hening, VII, 519 (1762); WMCQ, 2d ser., VII, 257.
22 Cooper, S.C. Stat., III, 657 (1745).
28 Daniel Defoe, Party-Tyranny, or An Occasional Bill in Miniature; as now Practised in Carolina (London, 1705), reprinted in A. S. Salley, Jr., ed., Narratives of Early Carolina (New York, 1911), p. 239.
24 W. J. Rivers, A Sketch of the History of South Carolina to the Close of the Proprietary Government by the Revolution of 1719 (Charleston, 1856), Appendix, p. 459.
25 S.C. Stat. at Large, III, 2-4; McKinley, op. cit., pp. 147, 148.
26 In county elections in North Carolina Governor Dobbs through an error issued writs empowering the "inhabitants" instead of the "free inhabitants" to take part in elections. N.C. Col. Rec., VI, 303. A freeholder suffrage was also established in North Carolina. See Osgood, op. cit., IV, 151.
27 Mass. Hist. Soc., Proceedings, XLIX, 454.
28 Pa. Mag. of Hist. and Biog., II, 452; McKinley, op. cit., pp. 284, 285. For the efforts of the colonial workmen of Philadelphia to secure a widening of the franchise, see J. P. Selsam, The Pennsylvania Constitution of 1776 (Philadelphia, 1936), p. 138.
29 Selsam, op. cit., p. 138. 30
30 Conn. Code, 1750, p. 99.
31 N.Y. Hist. Soc, Coll., 1885, p. 52 (1695). See also E. S. Griffith, History of American City Government: the Colonial Period (New York, 1938), p. 203.
32 Munsell, Hist. Coll. of Albany, I, 254 (1773).
33 M.C.C., I, 18, 222; V, 326; N.Y. Hist. Soc., Coll., 1885, p. 533.
34 See R. B. Morris, ed., Sel. Cases, Mayor's Court, pp. 34, 178; R. F. Seybolt, The Colonial Citizen of New York City (Madison, Wis., 1918), p. 16.
35 Griffith, op. cit., pp. 210-213. In New York and Annapolis the percentage was closer to the latter figure.
38 Mass. Bay Rec., I, 188 (1637). For the procedure of nominations or elections in the early period, see Morrison Sharp, "Leadership and Democracy in the Early New England System of Defense," Amer. Hist. Rev., L (1945), 256-260.
37 Plymouth Col. Rec., Laws, p. 39; McKinley, op. cit., p. 366.
38 J. C. Miller, Origins of the American Revolution (Boston, 1943), p. 503. For the procedure by which the company chose its own officers, see C. K. Bolton, The Private Soldier under Washington (New York, 1902), pp. 25, 26. For a vote by corps on the subject of changing the rations, see Pa. Arch., 2d ser., XI, 24 (1779). For an agreement to enlist in the Virginia militia subject to the choice of officers by a majority of the subscribers, see Va. State Papers, I, 431 (1781).
39 4 Wm. and Mary, c. 24, reenacted from Charles II, provided that all jurors at quarter sessions or assize shall have £10 "by the yeare att least."
40 Mass. Acts and Resolves, I, 74 (1692); N.Y. Col. Laws, I, 387 (1699), 708 (1710), 1021 (1719), II, 345 (1726). The amount was raised to £60 freehold in 1741. N.Y. Col. Laws, II, 185. An alternative of personal estate of like value qualified a man in New York City and Albany. Ibid., Ill, 599. In Massachusetts the royal province required the juror to have either a personal estate worth £50 or real estate of freehold yielding at least 40s. annually. The property qualification for jury service had been fixed in that colony by the act of 1670 (Whitmore, Mass. Col. Laws, p. 148; reaffirmed in 1672), although modified on a number of occasions thereafter (ibid., p. 321 [1681]; Emory Washburn, Sketches of the Judicial History of Massachusetts from 1630 to the Revolution in 1775, p. 97). Typical property qualifications in other colonies: Del. Statutes, I, 241 (1741); II, 1072 (1793). Hening, III, 176-177 (1699); ibid., New ser., I, 19 (1792). N.C. Col. Rec., I, 199 (1669); XII, 875-876 (1778).
41 See also infra, pp. 522, 523.
42 R.I. Col. Rec., I, 124.
43 Ibid., p. 356. Cf. also attorney general's report in 1693 concerning the petition of Sir Matthew Dudley and others to establish a joint stock company to engage in mining, etc. in New England: "I think that the exemption of their workmen and servants from serving on juries should be conditional." CSPA, 1693-96, No. 55, p. 158 (1693).
44 See J. Goebel and T. R. Naughton, Law Enforcement in Colonial New York (New York, 1944), p. 467.
45 Lex Londinensis, pp. 45, 47.
46 Hening, II, 69.
47 See "Justices of the Peace of Colonial Virginia, 1757-1775," ed. H. R. McIlwaine, Va. State Library, Bulletin, XIV, Nos. 2 and 3 (1921) (Richmond, 1922), pp. 55 et seq. Typical of other areas: At a court of quarter sessions held in Tryon County, N.Y., Dec. 13, 1774, the following justices sat: John Butler, trusted agent of Sir William Johnson and father of the notorious Loyalist, Walter Butler; Sir John Johnson, who had just succeeded to the title of baronet and fallen heir to the greater part of his father's estate; and Jelles Fonda, whose family were early settlers in the area. All three were of the substantial propertied class. Tryon Q.S., 1774, N.Y. Hist. Soc.
48 See petition of Holmes, Spotsylvania, Va., O.B., 1724-30, f. 258 (1728).
49 Hening, II, 164 (1662). See also Starke, Justice of the Peace, p. 319.
50 See contra: Crumpton's complaint for clothes withheld by master. Prince George, Md., lib. B, 1699-1705, f. 352 (1705). See also Watkins's estate, Essex, I, 13 (1641), where the master was allowed to keep the clothes of his deceased servant who died within six or seven weeks after landing, as he had paid for the servant's passage and "had no service of him of value."
51 See supra, pp. 397 f.
52 J. Commrs. Trade and Plantations, 1734/5-41, p. 53 (1735).
53 Ga. Col. Rec., VI, 134 (1744).
54 Newcastle, Del., Court Rec., I, 292 (1679).
55 See, e.g., Essex, I, 259 (1652); III, 409, 452 (1667).
56 Petition of Nowell, et. al., Essex, III, 9 (1662). See also Goodwin v. Downeing, ibid., I, 161 (1649).
57 Accomac O.B., 1632-40, f. 46.
58 Essex, V, 160 (1673).
59 Essex Probate Rec., I, 13 (1641); III, 9 (1675).
60 See, e.g., HMC, Rep., XIII, 186. See also will of John Colleton, of Whitecomb Rawleigh, County of Devon, Baronet, proved Nov. 30, 1754: "To my servants £5 each instead of mourning . . ." S.C. Hist, and Geneal. Mag., XV, 91; and of Joseph lies, merchant of Bristol, who left three servants £6 apiece. Ibid. (proved April 26, 1750).
61 Md. Arch., IV, 314.
62 Md. Cal. of Wills, 1635-1738,1, 51 (1665).
63 Essex, III, 409 (1667).
64 Abstract of Norfolk Co., Va., Wills, 1637-1710, p. 22 (1662).
65 Potter's will, WMCQ, 1st ser., XVIII, 193 (1691). For other typical bequests by masters to their servants, see, e.g., Lincoln, Me., Probate Rec., 1760-1800, p. 241 (1791); Essex, Mass., Probate Rec., I, 9 (1645), 107 (1637), 141 (1650), 161 (1653), 223 (1655), 233 (1665), 333 (1660), 385 (1661), 405 (1662), 439 (1664), II, 56, 61 (1666), 123 (1665), 147 (1669), 242 (1671), 251 (1670), 264 (1672), III, 328 (1679), 382 (1680); Essex Quarterly Court Rec., III, 231 (1665), 363 (1666), IV, 411, 446 (1671); Conn. Probate Rec., I, 18 (1648); Court of Albany, Rensselaerswyck, and Schenectady Mins., 1675-80, II, 321 (1678); Md. Cal. of Wills, III, 105, 127 (1708), 128 (1709), V, 23 (1719), 30, 94 (1720), VI, 5 (1726), 7 (1725), 227 (1731), VII, 52 (1735), 135 (1735), 258 (1738), 262 (1686); VMH, II, 278 (1701), V, 405 (1655), XXXIV, 284 (1671), 347 (1701); WMCQ, 1st ser., XVII, 271 (1697), XXIV, 38 (1652); Jackson's will, S.C. Court of Ordinary, 1672-92 (1683); Cottingham's will, S.C. Hist. and Geneal. Mag., VIII, 203 (1683).
66 See Some Records of Sussex Co., Del., p. 98 (1683). At common law the master had an interest in the labor and acquisitions of his servant, but he could not maintain trover for any property acquired by the servant. However, in the case of an apprentice, his gains went to the master. 1 Salk. 68; Bacon, Abridgement (London, 1832), V, 366; Graydon, Justice's and Constable's Assistant, p. 15.
67 Assistants, II, 5.
68 New Haven Col. Rec., I, 601 (1656). For trading with Indian or Negro slaves or servants in Connecticut, see Conn. Pub. Rec., V, 52 (1708).
69 N.Y. Col. Laws, I, 47. A Pennsylvania statute of 1700 provided a penalty of treble the value of the goods traded, the servant to be subject to serve for a term equivalent to double the value of the goods sold. Pa. Stat. at Large, II, 54-56 (1700).
70 See Evans v. Foxhall, Md. Arch., LVII, 125 (1668); Norris's Case, ibid., XLI, 511 (1671); Beard qui tam v. Sporne, Ann Arundel, lib. 1702-4 (1703); cf. also Majesty v. Hanim, ibid. (1705).
71 Corporal punishment for the servant was provided under Maryland law. Ibid., I, 500 (1663). Philip Fine, carpenter, fined 1,000 lbs. of tobacco for dealing with the servants of Daniel Dulany and William Reynolds. Ann Arundel County, 1745-47, f. 120 (1746). See also Her Majesty v. Collins, Queen Ann, 1710-16, f. 117 (1710), not guilty. Case was occasionally used for this offense. Lane v. Broughton, Somerset AW, 1690-91, fols. 62, 63VS0 (1688). Such offenders also laid themselves open to the suspicion of receiving stolen goods. Proprietary v. Calahan, Annapolis mayor's court, 1720-84, f. 5 (1720). In 1691 a cooper was prosecuted for dealing with a Virginia runaway and purchasing a 16-foot boat which the servant had stolen from his master "for an invaluable [sic] consideration, which might have been Sufticient [sic] Suspicion to have Secured both the Runaway and Boat according to Law, but fraudulently and craftily intending to frustrate" the master, he concealed the servant and the boat, which the indictment charged to be "flatt contrary to the laws and institutions of this Province enjoyning and authorizing all persons to take up all such Suspitious persons coming into this Province without a pass, as also agt the Act inhibiting all persons to entertain or deal and truck with any hireling or Servant without the Masters knowledge." Fine confessed to that part of the indictment relating to buying the boat, which he was ordered to deliver into the custody of the sheriff and to give security for good behavior and appearance. Somerset AW, 1690-91, fols. 36, 37 (1691).
72 Va. Gen. Court Mins., p. 482 (1639); "Abridgment of Virginia Laws," 1694, VMH, X, 156, 157. Hening, I, 274 (1643); II, 118, 119 (1662); III, 447 (1705); VI, 357-369 (1753).
73 Va. Gen. Court Mins., p. 301 (1672). See also Kirton v. Richardson, Northumberland O.B., 1666-78, f. 84 (1672), punishment remitted at plaintiff's request, but defendant ordered to pay 800 lbs. of tobacco and costs; Sarah Hinnes's case, York O.B., 1706-10, f. 149 (1708), remanded to prison on suspicion of dealing with servants and of concealing the goods of another until she gave security for good behavior; sentenced to pay complainant 7s. 6d. with costs. Cowley v. Sulkin, Henrico O.B., 1737-46, f. 10 (1737), judgment for £20 current and costs. See also Wallace's petition, VMH, XI, 60, 61 (c. 1647) with reference to an appeal to the General Court in an action of trespass brought upon the law against trading with servants.
74 Hall, Laws of Barbados, pp. 35-42; Jennings, Laws, p. 17 (1661).
75 Antigua MS Laws, 154:1, f. 39 (1669). See also act of 1693, Montserrat MS Laws, f. 45.
76 Trott, Laws of S.C., I, 52 (1696); Cooper, S.C. Stat., III, 487 (1738).
77 This was recoverable by information in any court of record. For prosecutions for dealing with slaves, see N.C. Col. Rec., II, 96, 114 (1713).
78 See Conn. Pub. Rec., 1665-78, p. 50 (1666).
79 See power of attorney granted by Attorney-General William Calvert to his servant, Robert Simmons. Md. Arch., LVII, 426 (1668).
80 In Chivers v. Greenby the Maryland Provincial Court held that such a plea was insufficient in law because the defendant's attorney did not join in demurrer in due time. Md. Arch., LVII, 423, 424 (1669).
81 See Albany Notarial Papers, p. 445 (1677), allowing the employee to work "three or four weeks in the harvest for his own profit, provided he serve so much longer afterwards."
82 York O.B., 1675-84, f. 192 (1679).
83 Agreement between William Reid and Colonel John Thomas, Ann Arundel, 1702-4, f. 476 (1703). This may have been a case of servitude for debt, as the service was to terminate upon payment of £30 sterling.