Servitude and Slavery
For the antecedents of Negro slavery in America one must go back to the system of indentured labor known as servitude. This has been defined as "a legalized status of Indian, white, and Negro servants preceding slavery in most, if not all, of the English mainland colonies."22 A study of servitude will explain many of the acts with reference to Negroes, especially those about intermarriage with white people. For the origins of the system one must go back to social conditions in England in the seventeenth century. While villeinage had been formally abolished in England at the middle of the fourteenth century, it still lingered in remote places, and even if men were not technically villeins they might be subjected to long periods of service. By the middle of the fifteenth century the demand for wool had led to the enclosure of many farms for sheep-raising, and accordingly to distress on the part of many agricultural laborers. Conditions were not improved early in the sixteenth century, and they were in fact made more acute, the abolition of the monasteries doing away with many of the sources of relief. Men out of work were thrown upon the highways and thus became a menace to society. In 1564 the price of wheat was 19s. a quarter and wages were 7d. a day. The situation steadily grew worse, and in 1610, while wages were still the same, wheat was 35s. a quarter. Rents were constantly rising, moreover, and many persons died from starvation. In the course of the seventeenth century paupers and dissolute persons more and more filled the jails and workhouses.
Meanwhile in the young colonies across the sea labor was scarce, and it seemed to many an act of benevolence to bring from England persons who could not possibly make a living at home and give them some chance in the New World. From the very first, children, and especially young people between the ages of twelve and twenty, were the most desired. The London Company undertook to meet half of the cost of the transportation and maintenance of children sent out by parish authorities, the understanding being that it would have the service of the same until they were of age.23The Company was to teach each boy a trade and when his freedom year arrived was to give to each one fifty acres, a cow, some seed corn, tools, and firearms. He then became the Company's tenant, for seven years more giving to it one-half of his produce, at the end of which time he came into full possession of twenty-five acres. After the Company collapsed individuals took up the idea. Children under twelve years of age might be bound for seven years, and persons over twenty-one for no more than four; but the common term was five years.
Under this system fell servants voluntary and involuntary. Hundreds of people, too poor to pay for their transportation, sold themselves for a number of years to pay for the transfer. Some who were known as "freewillers" had some days in which to dispose of themselves to the best advantage in America; if they could not make satisfactory terms, they too were sold to pay for the passage. More important from the standpoint of the system itself, however, was the number of involuntary servants brought hither. Political offenders, vagrants, and other criminals were thus sent to the colonies, and many persons, especially boys and girls, were kidnapped in the streets of London and "spirited" away. Thus came Irishmen or Scotchmen who had incurred the ire of the crown, Cavaliers or Roundheads according as one party or the other was out of power, and farmers who had engaged in Monmouth's rebellion; and in the year 1680 alone it was estimated that not less than ten thousand persons were "spirited" away from England. It is easy to see how such a system became a highly profitable one for shipmasters and those in connivance with them. Virginia objected to the criminals, and in 1671 the House of Burgesses passed a law against the importing of such persons, and the same was approved by the governor. Seven years later, however, it was set aside for the transportation of political offenders.
As having the status of an apprentice the servant could sue in court and he was regularly allowed "freedom dues" at the expiration of his term. He could not vote, however, could not bear weapons, and of course could not hold office. In some cases, especially where the system was voluntary, servants sustained kindly relations with their masters, a few even becoming secretaries or tutors. More commonly, however, the lot of the indentured laborer was a hard one, his food often being only coarse Indian meal, and water mixed with molasses. The moral effect of the system was bad in the fate to which it subjected woman and in the evils resulting from the sale of the labor of children. In this whole connection, however, it is to be remembered that the standards of the day were very different from those of our own. The modern humanitarian impulse had not yet moved the heart of England, and flogging was still common for soldiers and sailors, criminals and children alike.
The first Negroes brought to the colonies were technically servants, and generally as Negro slavery advanced white servitude declined. James II, in fact, did whatever he could to hasten the end of servitude in order that slavery might become more profitable. Economic forces were with him, for while a slave varied in price from £10 to £50, the mere cost of transporting a servant was from £6 to £10. "Servitude became slavery when to such incidents as alienation, disfranchisement, whipping, and limited marriage were added those of perpetual service and a denial of civil, juridical, marital and property rights as well as the denial of the possession of children."24 Even after slavery was well established, however, white men and women were frequently retained as domestic servants, and the system of servitude did not finally pass in all of its phases before the beginning of the Revolutionary War.
Negro slavery was thus distinctively an evolution. As the first Negroes were taken by pirates, the rights of ownership could not legally be given to those who purchased them; hence slavery by custom preceded slavery by statute. Little by little the colonies drifted into the sterner system. The transition was marked by such an act as that in Rhode Island, which in 1652 permitted a Negro to be bound for ten years. We have already referred to the Act of Assembly in Virginia in 1661 to the effect that Negroes were incapable of making satisfaction for time lost in running away by addition of time. Even before it had become generally enacted or understood in the colonies, however, that a child born of slave parents should serve for life, a new question had arisen, that of the issue of a free person and a slave. This led Virginia in 1662 to lead the way with an act declaring that the status of a child should be determined by that of the mother,25 which act both gave to slavery the sanction of law and made it hereditary. From this time forth Virginia took a commanding lead in legislation; and it is to be remembered that when we refer to this province we by no means have reference to the comparatively small state of to-day, but to the richest and most populous of the colonies. This position Virginia maintained until after the Revolutionary War, and not only the present West Virginia but the great Northwest Territory were included in her domain.
The slave had none of the ordinary rights of citizenship; in a criminal case he could be arrested, tried, and condemned with but one witness against him, and he could be sentenced without a jury. In Virginia in 1630 one Hugh Davis was ordered to be "soundly whipped before an assembly of Negroes and others, for abusing himself to the dishonor of God and the shame of Christians, by defiling his body in lying with a Negro."26 Just ten years afterwards, in 1640, one Robert Sweet was ordered "to do penance in church, according to the laws of England, for getting a Negro woman with child, and the woman to be whipped."27 Thus from the very beginning the intermixture of the races was frowned upon and went on all the same. By the time, moreover, that the important acts of 1661 and 1662 had formally sanctioned slavery, doubt had arisen in the minds of some Virginians as to whether one Christian could legitimately hold another in bondage; and in 1667 it was definitely stated that the conferring of baptism did not alter the condition of a person as to his bondage or freedom, so that masters, freed from this doubt, could now "more carefully endeavor the propagation of Christianity." In 1669 an "act about the casual killing of slaves" provided that if any slave resisted his master and under the extremity of punishment chanced to die, his death was not to be considered a felony and the master was to be acquitted. In 1670 it was made clear that none but freeholders and housekeepers should vote in the election of burgesses, and in the same year provision was taken against the possible ownership of a white servant by a free Negro, who nevertheless "was not debarred from buying any of his own nation." In 1692 there was legislation "for the more speedy prosecution of slaves committing capital crimes"; and this was reënacted in 1705, when some provision was made for the compensation of owners and when it was further declared that Negro, mulatto, and Indian slaves within the dominion were "real estate" and "incapable in law to be witnesses in any cases whatsoever"; and in 1723 there was an elaborate and detailed act "directing the trial of slaves committing capital crimes, and for the more effectual punishing conspiracies and insurrections of them, and for the better government of Negroes, mulattoes, and Indians, bond or free." This last act specifically stated that no slave should be set free upon any pretense whatsoever "except for some meritorious services, to be adjudged and allowed by the governor and council." All this legislation was soon found to be too drastic and too difficult to enforce, and modification was inevitable. This came in 1732, when it was made possible for a slave to be a witness when another slave was on trial for a capital offense, and in 1744 this provision was extended to civil cases as well. In 1748 there was a general revision of all existing legislation, with special provision against attempted insurrections.
Thus did Virginia pave the way, and more and more slave codes took on some degree of definiteness and uniformity. Very important was the act of 1705, which provided that a slave might be inventoried as real estate. As property henceforth there was nothing to prevent his being separated from his family. Before the law he was no longer a person but a thing.