2

ENGLISH WHITE SERVANTS.

3

219

like that existing in the modern English penal colonies. Some were ordinary criminals or vagrants sent from English jails or workhouses, either in commutation of imprisonment or by virtue of some special statute. The exportation of such persons continued for a long time to be an established part of British criminal discipline, and when this class of indentured servants became the most numerous, their introduction was probably against the wishes of the colonists. Many of the royalists taken prisoners by the parliamentary forces during the civil war, and insurgents in Penruddock's and Monmouth's rebellion were also sent out to serve in the same condition. It may be supposed, from various publications of that day, that there were many instances in which persons were feloniously kidnapped in England and sold in the West Indian islands or America, either as servants for a term of years, or as slaves for life."

As will appear from colonial statutes enumerated in the next chapter, the local governments assumed the power of subjecting free white persons to this condition, as a punishment for acts which were not so punishable either at common law or by any English statute."

'Chalmers, Pol. Ann. p. 47, observes that the statute, 39 Eliz c. 4, which enacted "that dangerous rogues might be banished out of the realm," was the only law which, in 1619, justified the infliction of expulsion as a punishment; but that the transportation of obnoxious persons to Virginia, at that time, was probably vindicated, by the administration, on "prerogative." By § 13 of 31 Car. 2, c. 2, (the Habeas Corpus Act,) persons contracting to be transported beyond seas are excepted from its provisions. By law of the Scottish Parliament, in 1671, against conventicles, recusants might be punished by banishment to the plantations. Hume, ch. 66. Some were probably sold as servants, to defray the cost of transportation. 4 Geo. I. c. 11, § 1, allows sentence of transportation to America, and empowers persons transporting convicts to assign their services. By § 5, merchants and others may contract with minors, above fifteen years, to serve not exceeding eight years in America. 6 Geo. 1, c. 33, and 4 Geo. 2, c. 11, provide for transportation of criminals to America. By 17 Geo. 2, c. 5, § 28, vagrants, whose settlement could not be found, might be sent to the plantations.

There were such persons also in the Danish colony of New Sweden, see Campanius Holm, ch. vii. in Mem. of Pennsyl. Hist. Soc., vol. iii. 1st Part.

* 1 Hildr. 119; Walsh's Appeal, sec. ix. ; post ch. vi., Virginia L. of 1670, Pennsyl. L. of 1722.

Godwin's Commonwealth, III., 273; IV., 172.; Stevens' Georgia, p. 294; Walsh's Appeal, p. 38. For treatment of the Scots prisoners in Mass., see Hutch. Coll., 235.

2 Graham's Hist. 421, and note. 1 Hildr. 99, 193, 356, 509. 2 do., 263. 1 Banc. 175; 2 Banc. 251; 2 Elliot's N. E., p. 176.

See post ch. vi. Maryl. Laws, 1663, c. 3; 1676, c. 2-marriage of white women with slaves. Conn. code of 1650-satisfaction of debts by servitude. Mass. L., March, 1632; 1 Mass. Records, pp. 246, 269, slavery mentioned as the punishment inflicted

§ 211. These servants or redemptioners were known in the colonies either as "indented servants," whose term of service was determined by their original contract, or by the penal sentence which subjected them to this condition, or as "servants sold for the custom ;" those so designated being, probably, such as were brought into the colonies without any special sentence or contract, beyond the obligation incurred for the expense of their transport, to determine their term of service, which was fixed by colonial statutes according to circumstances of age and sex.1

The legal condition of these persons was essentially different from that of chattel slaves in its origin and duration; since it rested altogether on law of national origin,2 (i. e. a jus proprium,) and in the fact that the personality of the slave was recognized during its existence, and that it was limited to a specific time. But notwithstanding this difference and the fact that laws were enacted for their special protection recognizing them as legal persons, yet their general condition and disabilities, during its continuance, seem in many respects to have been the same, and much of the colonial legislation-that of some of the northern colonies at least-in reference to servants, applied both to such persons and to negro and Indian slaves. Some of these laws will be noticed hereafter in connection with the statutes relating to negro slaves."

At the expiration of the fixed period of servitude, the indentured servant or redemptioner recovered, with his liberty, all the rights of a free person under the laws of England, and there was nothing to distinguish his condition in this respect from that of other free inhabitants of English descent, he being then equally entitled to the protection of that law throughout the British empire.

on certain delinquents, (1638.) Order of the General Court, 1659, for the sale of Quakers.

1 Compare post, ch. vi., Virginia Laws, from 1642 to 1660.

2

Unless, when resting on a contract, it could have been held to be valid by universal jurisprudence or the jus gentium. But comp. ante p. 139, n. for the common law doctrine as to contracts for service.

'The English statute, 29 Geo. 2, c. 35, § 1, provides for enlisting indented servants in America.

4 2.Hildr. 1st ser., p. 428. In 1777, servants enlisted in the Continental army were

EXTENSION OF THE EMPIRE.

221

§ 212. It is not necessary to trace historically the changes by which the North American colonies, originally held by other nations than the English, became incorporated into the British empire, or the laws which prevailed therein, determining the condition of private persons before that period, or the legislative acts of the imperial government, by which the common law and statutes of England became extended over them, in the same manner and degree as over the colonies originally settled by the English. However much the rights of the white inhabitants of those colonies may have differed in their public or political character' from the liberties of the English colonists, they were substantially of the same character in their practical exercise in social relations. In all the colonies the same legal distinctions accompanied a difference of race or physical constitution, and upon the acquisition of those colonies by the British crown, the civil or social rights of the free inhabitants were secured to them, under the new sovereignty, on the transfer of their allegiance by international treaties.

declared freemen by the Congress, with the understanding that compensation was to be made to the masters, for loss of service, 3 Hildr. 190. The war stopped the importation of indented servants, and it was not revived to any great extent afterwards. Some Germans were imported about 1789: but Acts of Parliament prevented the indenting of laborers in England for transportation to America: 1 Hildr. 2d series, p. 93; 25 Geo. 3, c. 67, continued by later acts. In Walsh's Appeal, Pref. p. 29, the author speaks of vessels arriving at Philadelphia in 1816, 1817, "laden with redemptioners from the continent of Europe."

Ch. XV. of Banc. U. S. In the Swedish colony of New Sweden the law rested entirely on the home sovereignty, except the police power. See Governor's commission in Mulford's Hist. of New Jersey, p. 86. O'Callaghan's Hist. of New Netherlands, vol. 1, p. 90: "The director-general and his council were invested with all powers, judicial, legislative and executive, subject, some supposed, to appeal to Holland; but the will of the Company, expressed in their instructions, or declared in their marine or military ordinances, was to be the law in New Netherland, excepting in cases not specially provided for, where the Roman law, the imperial statutes of Charles V., the edicts, resolutions and customs of Fatherland, were to be received as the paramount rule of action." P. 101: "The director and council had supreme, executive, and legislative authority in the colony." See also Moulton's Hist. of New York, vol. L., part 2, 369, also B. F. Butler's Discourse on the Constitutional History of the State of N. Y., pp. 14, 15, 20.

CHAPTER VI.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES ;THE SUBJECT CONTINUED. LOCAL LEGISLATION DETERMINING CONDITIONS OF FREEDOM OR OF BONDAGE.

§ 213. It has been attempted in the three preceding chapters to exhibit the origin and extent of positive' laws in the American colonies; in doing which, it was necessary to regard those laws both as public and as private law; that is, in other words, to consider both the location of the sovereign legislative or juridical power, which was the source and basis of the private law, and its actual effects upon the conditions of private persons within the colonial territory. As the introduction of that law, whether public or private, was dependent upon the external force and imperial authority of the crown and parliament of England, it was in those chapters considered mainly as the law of one nation; irrespectively of those local distinctions which the separate powers of the several colonies, either independently of, or in co-operation with, the imperial authority, might each, in accordance with the public and national law, create within their respective domains. It is the law which thus originated in legislative or juridical power acting in and for the several colonies, as distinct and separate jurisdictions, which, in its effect upon conditions of freedom and its opposites, is the subject of this chapter.

'Meaning that law which was both internal and international, and commonly called municipal, but more properly national law, ante, § 53. From the peculiar distribution of legislative power which existed under the British Empire, the term national, if employed here, would be liable to misconstruction.

EXTENT OF THE POWER.

223

§ 214. The legislative power of the colonial government was, as has been shown, indirectly limited by the national guarantee of common law liberties to the colonists and their descendants. But they were also expressly restricted by the charter provision that their local legislation should not be repugnant or contrary to the laws of England, or should be agreeable or conformable, as nearly as might be, to the laws of England. The effect of this restriction as a protection to private individuals was not limited in the charters by any personal distinction expressed therein. But it appears, as has already been indicated in the third chapter, that in determining what rules would not be repugnant to, or would be agreeable to, the laws of England, the colonial assemblies or legislatures claimed and exercised with the sanction of the crown, an authority, in reference to matters of internal law, which, in the language of Story, might "abrogate every part of the common law, except that which united the colonies to the parent state by the general ties of allegiance and dependency;" or that, as the colonial tribunals had a several power of interpreting and applying common law in their respective jurisdictions, they practically under the revisory power of the king in council, determined how far the territorial law of England was adapted to the situation of persons and things within the colonial jurisdiction and should control the creation of a local law. The existence of this power was illustrated in the colonial laws of descent of estates and in every department of private law. It appears therefore that the charter restriction above mentioned did not prevent the colonial legislative bodies from establishing, with the sanction of the local judicature, a rule of condition, in reference to persons not protected in the possession of individual and relative rights by the common law of England having personal extent, different from any known to that law and incompatible with the enjoyment of those rights. Besides, as has been

1 Story's Comm. § 163.

A distinguished jurist of Virginia has said, "Local circumstances, likewise, gave an early rise to a less justifiable departure from the principles of the common law in some of the colonies, in the establishment of slavery; a measure not to be reconciled either to the principles of the law of nature, nor even to the most arbitrary establish