216

A LOCAL LAW OF CONDITION.

his freedom was inferior to that of the white citizen in the nature of its guarantees.

§ 208. Thus, simultaneously with the establishment in this continent, by the colonists or by the national authority, of the law of status or condition for persons in England, to be the system of private municipal (internal) law, which, as a personal law, was to maintain the rights and liberties of the English colonists and their descendants, was established through like authority and with equally jural character, another department or system of laws;-a system which, so far at least as it supported slavery or involuntary servitude, is commonly held at the present day to have always been contrary to that which prevailed as the territorial law of England. This system also had, in the several colonies, the character of a personal law in being applicable to a portion of the inhabitants who had no claim by birthright or inheritance to participate in the protection of the laws of England-the common law of the rights and liberties of Englishmen.1

'Sir W. Jones' Works, 4to., vol. III., p. 48. Charge to Grand Jury at Calcutta, June 9, 1792. "It is agreed by all who have coolly and impartially studied our noble constitution, as declared by many statutes from the Great Charter to the Bill of Rights, all which you know are solemn recognitions of our ancient public law, that three peculiar advantages are conferred by that sacred law on the people of England or on all subjects who are not noble, but may, if they please, be independent; first a distinct, unalienable third share of the legislative power; next a right, coupled with a duty, of keeping and using arms for the defence of their persons and habitations as well of their several counties, when the sheriff shall call for their aid; thirdly, the right of being tried, when impleaded or accused, by their equals freely chosen, instead of appointed officers to whom they cannot except," p. 49-" and we may thence infer that if any acknowledged subjects of Britain (for a different faith or complexion can make no difference in justice and right) shall be tried, convicted and punished by a summary jurisdiction, however constituted, for petit larcenies, breaches of the peace, and other misdemeanors," &c. The law was certainly never so extended in the American colonies. In 1833, statutes in respect to India were proposed in Parliament, on a plan which should "effect a complete identification of Europeans and natives in the eye of the law, without regard to color, birth, or religion." 2 Kent, (3d ed.) p. 73 n. citing Ann. Reg. for 1833, p. 184, which see, and Lord Ellenborough's assertions, p. 186, of the impossibility of producing such effect. That the British Government, while conferring civil rights on slaves in India, did not "forcibly manumit " them, see H. St. G. Tucker's Memorials of Indian Gov. p. 434, Editor's note.

Forbes v. Cochran, (1824,) 2 Barn. & Cress. 463, Holroyd J. "Put the case of an uninhabited island, discovered and colonized by the subjects of this country; the inhabitants would be protected and governed by the laws of this country. In the case of a conquered country, indeed, the old laws would prevail until altered by the king in council; but in the case of the newly discovered country, freedom would be as much the inheritance of the inhabitants and their children as if they were treading on the soil of England." The correctness of this proposition at any particular period, (if in

ALIEN WHITE PERSONS.

217

§ 209. But under the classification given in this chapter1 of persons within the colonies whose legal condition was not determined by the common law of England as a personal law by reason of birth in the realm of Great Britain, or their descent from ancestors of English birth, another description of aliens to the British empire is included; viz., persons of European or Caucasian race, the subjects of those states which, by the supposed possession of superior knowledge and power, are known in international law as civilized states; the authors and expositors of universal jurisprudence or the law of nations, herein before described as a judicial rule, and the authors and subjects of that rule of action which, though not having the force of law for such states, is herein called international law. The condition of these persons, when appearing as aliens within the dominion of the British empire would be determined by private international law, derived from legislation and judicial exposition of the rules of natural reason, until they should have acquired a domicil, as that term is understood in international law; when they would become the subjects of that which is called, in contradistinction, municipal, or more properly, internal or local law. The chattel slavery of whites or Europeans as the property of legal persons, having long before become unknown under the various systems of municipal (national) law in Europe, all aliens of this description appeared within the colonies as legal persons, whose rights, as such, while they remained aliens, or, at least, while they only sustained relations incident to foreign commerce or to war, would fall under the scope of the imperial authority, according to the division of power which was herein before stated as the public law of the empire. Upon their becoming domiciled inhabitants of a colony, their relations, as persons, to the rest of the community, would have been subject to provincial and na

tended to include persons not of English birth or descent,) will depend upon the rules which may at that time be recognized in the English courts as being universal in their extent, and upon the jus gentium then recognized in English jurisprudence.

' § 195.

"Ethi

Although there are manifest objections to the use of this term, it is here adopted as having a tolerably well defined meaning, in connection with this subject. opian and Caucasian races."-1 Banc. 177. 2 same, 464.

Ante, § 131.

218

INDENTURED SERVANTS.

tional authority in the same manner as those of the Englishborn colonists. In most, if not in all the charters, provision was made that the colonists of other European nations than the English should participate in the privileges of those of English birth, and acts of naturalization were passed at different times, by the imperial and colonial authorities, placing the European alien upon an equal footing of privilege with the English; requiring, of course, the profession of allegiance to the crown and to the government of the colony.'

§ 210. Under the system of colonization adopted by the European states possessing territory in North America, there also existed another kind of bondage, differing from slavery in its origin and extent, being, strictly speaking, founded on municipal law alone, (jus civile or proprium.) This species of servitude became obsolete about the time of the war of the revolution, and now is of importance only as casting some light on the legal nature of a free condition and absolute slavery during the colonial period. A portion of the white settlers in all the colonies were those known as indentured servants or redemptioners, who were English or other Europeans, bound to personal service, without wages, different from any known in England, but analogous to that of minor apprentices. Such persons were recognized in the colonial legislation as a distinct class among those held to enforced servitude, though many of the statutes respecting them applied to slaves also.

The service of persons of this class might either have been involuntary from its commencement, or have originated in their own consent; some having bound themselves to serve in the plantations during a certain number of years, in return for the expenses of their transportation and support. The servitude of others was the penalty of crime committed in the mother country,

As to the interpretation of these acts of legislation by a reference to personal distinctions founded on the law of nations, see ante § 201.

That colonial acts of naturalization were of force only in and for the colony, see 1 Chal. Opinions, pp. 343-4. By the 13 Geo. 2, c. 7 (1740) "an act for naturalizing such foreign Protestants and others, therein mentioned, as are settled, or shall settle, in any of his Majesty's colonies in America." Such persons residing seven years, and taking the oaths, to be deemed natural born subjects.

2

By the common law no person could be sent out of the kingdom against his will. 2 Co. Inst. 46; 1 Bla. Comm. 137; 2 Hawk. P. C., c. 33. Ordinary apprentices cannot be so sent out. Coventry v. Woodall, Hob. 134; 1 Brownl. pl. 67.

2

ENGLISH WHITE SERVANTS.

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. L. 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.

31 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

220

LIMITATION OF SERVITUDE.

§ 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

2

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, (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.1

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

1

2

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

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.

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