IX. THE LEGAL STATUS OF SERVITUDE

LEGAL AND POLITICAL RIGHTS OF SERVANTS

The colonial bound laborer dwelt in that shadowland between freedom and slavery. To the author of Moll Flanders white servitude and slavery were identical. In fact, the system of indentured servitude differed in certain important essentials from Negro slavery. In the first place, the colonial settlers did not consider the servant inferior as a human being, but recognized him to be a fellow Christian, not differentiated by race. A slave had only those rights which were granted by law. A bound servant enjoyed all rights, whether political or legal, except those specifically denied him by law or contract. His mobility, his freedom of occupational choice, and certain personal liberties were curbed merely for a term of years, whereas a slave was bound for life, and his children inherited his unfree status. Detailed consideration has already been given to certain limitations upon the freedom of the bound servant arising largely out of the prevailing concept that the master had a property interest in his servant's term. Aside from such limitations, it is appropriate to consider as a concluding problem the extent to which the bound servant enjoyed the legal and political rights of free settlers.

The Servant's Day in Court. Not only legal safeguards but also ethical standards imposed by religion served to mitigate class injustice in the colonies and to assure the servant his day in court. The pious settler could not fail to remember the injunction of Job: "If I did despise the cause of my manservant or of my maid servant, when they contended with me, what then shall I do when God rises up?" Thus the Virginia Company, concerned lest oppression or fraud enter into the making of contracts of employment, sought to prevent masters from holding their servants to "intollerable and vnchristianlike conditions." The magistrate was often regarded as labor's shield against the injustices of the oppressive master. One servant, who had a wife and five children in England, petitioned John Winthrop, "whom the lord hath sett in place to iudge the cause of the poore," asking him "to stand my frend (beeing destitute of any other in this land) that I may part from my m[aste]r without any trouble."¹ Aside from securing from the courts a measure of relief on grounds of undue correction, insufficient food and clothing, and, in the case of apprentices, inadequate instruction or abandonment, servants had considerable success in enforcing the principle that the essence of servitude was service for a limited term specified by contract or prescribed by custom. In suing for freedom on the ground of having completed their service or attained their majority, servants obtained their discharge by the courts in over 60 per cent of such cases.²

The servant's suit was generally instituted by petition. In order to protect this proceeding from attack on the ground that it differed from English practices a statute was enacted in Maryland in 1698 which provided that no judgment should be reversed for "want of Judiciall process, or that the same was not tryed by Jury or any matter of form Either in the Entry or giving of Judgment, provided it appears by the Record that the parties defendant were Legally summoned and not condemned unheard."³ From this procedure evolved the petition for freedom of slaves.

In support of such a petition or in defense of a suit brought by a master the servant appears to have enjoyed full testimonial capacity in the colonial courts.⁴ The record of proceedings in the master-servant litigation considered in this study fully substantiates the view that the servant was not only considered competent to testify against his master,⁵ but was also permitted to be a witness in his behalf. Despite the authority which the master had over his servant, the interests of the two were not considered identical, and hence the servant was not disqualified as an interested party.⁶

Sometimes a servant wished to fulfill his contract and petitioned the court to restrain the master from dismissing him before the expiration of his term. Cases in this category are, however, less frequent than suits for freedom; most disgruntled servants appear to have been anxious to put as much territory as possible between themselves and their masters. The requirement that the master secure the permission of the court before dismissing his servant is evidence that the colonial courts considered articles of indenture bilateral agreements capable of enforcement by eidier party.⁷

While the colonial courts were open to servant and master alike, the were not always open on an equal basis. The workman or servant who sought the intervention of the courts ran certain heavy risks not share by the master. Many of the colonies provided that servants who "unjustly" complained or molested their masters would be subject to whipping at the order of the court or to serving extra time, running to from three to six months for each such "causeless complaint."⁸ One master was awarded substantial damages by a Maryland court for the unjust molestation by his servant.⁹ Symptomatic of the unfriendliness of the bench to litigious servants was the unusual order of the Charles County court of Maryland at the March, 1673 session prohibiting any attorney from appearing for a servant against a master, "but such as the Court shall appointe."¹⁰

While the servant enjoyed full testimonial capacity, he often had practical difficulties in obtaining corroborative testimony from his fellow servants, who might very well be intimidated by the master. This condition was not peculiar to the colonies. In one contemporary London mayor's court action brought by an apprentice for cruel treatment, the attorney noted in his brief: "Note that the plts [plaintiff's] Witnesses are the Defts [defendant's] Journeymen and will be unwilling to discover the beatings."¹¹

Far less favorable treatment appears to have been accorded servants by the West Indian courts than they received in the continental colonies. In 1722 Governor Hart of Antigua criticized "the most unjust usage that was given to artificers and labourers who were not able to go to law with the persons they contracted with for their wages." In his opinion these injustices tended "to the enslaving of the servants and dispeopleing the Island of such labouring men." He strongly supported a statute which put workmen "on the same footing widi their fellow subjects in Gt. Britain."¹² From our vantage point the attainment of that goal would hardly have assured a tolerably high standard of justice in labor relations.

Suffrage and Jury Service. Normally the colonial suffrage was confined to freemen with property.¹³ Generally speaking, only a small minority of the male inhabitants were legally qualified to vote for the representatives to the legislatures, as the property qualification excluded large numbers of artificers and journeymen. In general, bound servants were excluded from the county and town suffrage.¹⁴ It stands to reason, then, that labor had virtually none of the political power in the colonial period that it has acquired since the Civil War.

There were occasional exceptions to the exclusion of the laboring population. The Virginia Company constitution of 1621 granted to all inhabitants of the colony the right to vote for the burgesses.¹⁵ This was in effect until 1655 when a law was passed limiting the franchise to "all housekeepers, whether Freeholders, leaseholders or otherwise tenants."¹⁶ While this law excluded inhabitants who had not served their terms, it provided a more democratic base for the franchise than did the subsequent act of 1670, which confined it to freeholders and housekeepers "answerable to the publique for levies."¹⁷ Just how did this restriction work out in practice? Governor Spotswood complained in 1713 that any one could vote, "though just out of the condition of a servant, and that can but purchase half an acre of ground."¹⁸ As a result of criticism by the conservative interests, the freehold qualification was defined in 1736 as one hundred acres (reduced to fifty in 1769) without a house, or twenty-five acres with a house, or the ownership of a house and lot in any town.¹⁹ In order to make sure that servants working at trades in towns should not qualify, acts of 1742 and 1752, respectively, provided that no servant should be allowed to vote on the ground of his being an inhabitant or resident of Williamsburg or Norfolk. The franchise was restricted to those who had served as apprentices to some trade within the city for a term of five years and were certified by the court of hustings to be inhabitants and householders.²⁰ Virginia also excluded from the franchise anyone who had been a "convict or any person convicted in Great Britain or Ireland, during the term for which he is transported," even though such a person might be a freeholder.²¹

In South Carolina a substantial property qualification was required of freeholders to vote for assemblymen.²² Nevertheless, complaints were made that at the election for members of the Assembly in 1701 abuses had been permitted. Not only aliens but "a great number of Servants and Poor and indigent Persons, voted promiscuously with their Masters and Creditors."²³ The opposition also charged that in the election of 1703 "Jews, Strangers, Sailors, Servants, Negroes and almost every French Man in Craven and Berkly County came down to elect, and their Votes were taken."²⁴ As apprentices and other indentured servants were excluded from voting by the act of 1717,²⁵ there was a clear implication that they had previously participated in the elections.²⁶ There is no question, however, as Josiah Quincy later observed, that ultimately neither servants, laborers, nor mechanics were represented in the legislature of South Carolina.²⁷ Illegal voting by servants appears to have occasionally occurred in other colonies. Servants appear to have participated in the Pennsylvania election of 1705, and there is evidence that even on later occasions members of the servant class attempted by electioneering tactics to influence the course of voting.²⁸ When the Revolution broke out, the long-standing £50 property qualification in that province was abolished and the franchise put on a democratic basis.²⁹

In town elections servants were customarily disfranchised. In Connecticut towns, however, "hired servants" could be admitted as inhabitants along with land- and house-owners provided they were deemed by the majority of the town to be persons of "Honest Conversation."³⁰ In New York the completion of the term of apprenticeship was one of the ways of obtaining the franchise.³¹ As a result of a contested election case in 1773, Albany specifically denied to bound servants the right to vote during the time of their servitude.³² Nevertheless the town franchise was more widely held than the county franchise. It was obtainable by birth and redemption as well as by apprenticeship. By an act of the common council of New York City in 1762 those unable to pay the price set for the freedom for merchants or artisans were admitted without cost,³³ a practice which had prevailed in the mayor's court for many years before that date.³⁴ As a result, barriers to the freedom were virtually removed and many journeymen and craftsmen gained admission. In municipal elections in the colonies generally from 20 to 30 per cent of the adult male population participated.³⁵

Finally, in the choice of militia officers, which in the Puritan colonies was left in the early years to the soldiers of the company or regiment, servants were specifically disqualified from voting.³⁸ Plymouth denied the vote to persons under twenty years of age, whether children or servants, but it is by no means clear that bound servants and apprentices who had attained that age were denied the militia franchise.³⁷ Even as late as the Revolution the New England militia was looked upon as a hotbed of democracy, with a great many officers in proportion to men and the pay of officers and men too nearly equal, although the practice of having the men choose their officers was by no means confined to New England.³⁸

The composition of the jury was of the utmost importance to laborers and servants engaged in litigation with their masters. Throughout the colonies servants were excluded from juries and the average workman had little chance to serve on one. Colonial property qualifications for petit juries were patterned after those in force in contemporary England.³⁹ In Massachusetts and New York, for example, the customary requirement that jurymen be freeholders or possessed of a personal estate to the value of £50⁴⁰ gave a distinct class angle to master-servant litigation.⁴¹ Rhode Island was an exception to the rule. Her statute of 1642 declaring that only freeholders were eligible to serve on the jury⁴² was later set aside by an act giving the court "the power to take any man they judge fit for that service."⁴³ Where, as in New York, certain towns were given the alternative qualification of personal estate, jury panels were in considerable part made up of artisans of the employer ranks.⁴⁴ It must be borne in mind that these property qualifications were a carryover from the mother country. The author of Lex Londinensis notes "that an Apprentice cannot sue out his Indenture against his Freeman but in this Court," and remarks quite naively: "and the Master need not doubt a fair trial; the Juries being all Masters, and the Court constantly shew them all just and lawful favour."⁴⁵

The bench was recruited exclusively from the property-holding and employer class. In Virginia, where the act of assembly of 1662 provided that the justices of the peace be "of the most able, honest and judicious persons of the county," ⁴⁸ that office tended to become hereditary. In the list of justices of that province we find such prominent families or personages represented as the Lees, the Robinsons, the Pendletons, the Blands, the Carters, the Stiths, the Chamberlaynes, the Diggeses, the Harrisons, George Washington and other members of his family, George Wythe, Edmund Scarburgh, and Thomas Jefferson.⁴⁷

The Servant's Right to His Own Personalty and Realty. At law the indentured servants had qualified property rights. Protective legislation in their behalf was soon necessary, as many had come to the colonies as immigrants, too easily exploited by masters and assignees. In 1662 a law was enacted in Virginia to prevent importers of servants from disposing of servants' goods. The law provided that servants bringing goods into the colony should have the right to dispose of them to their own advantage and to have an absolute property in them.⁴⁸ Nevertheless, this qualification was added -- permission of their master was necessary to the disposal of the goods.⁴⁹ In other words, this unique statute placed indentured servants in the same position as wards and minors. It is by no means clear that this rule prevailed throughout the American colonies.⁵⁰

Headrights were generally given to masters rather than to servants.⁵¹ In 1735 one master memorialized the Board of Trade that the land to be granted his seventeen servants in South Carolina in accordance with the governor's instructions for encouraging newcomers and settling townships be granted in his name.⁵² In a great many cases, of course, the servant received a grant of land upon application to the authorities upon the expiration of his term. The Georgia authorities provided the German servants at Vernonburgh with cattle and, when they perished of the "distemper," sent them another herd.⁵³

The white servant was the occasional recipient of gifts inter vivos, was legally authorized to accept payments for extra work for others with the permission of his master, and very frequently was remembered by benevolent masters when making testamentary disposition of their estates. A good illustration of the gift inter vivos is found in the Delaware court records⁵⁴ as early as 1679:

Be itt knowne unto all men by these prsents that I: Thomas Craniton of Duke Creeke in delowar River doe by these prsents freely give unto my servant John Pridgemore the Running of one Sowe during the Terme of his apprentishipp and att the End and Expiracon of his said tyme that hee the said Pridgemore shall have free Liberty to take the sowe away wth all hur Increase, as wittnesse my hand in New Castle this 25 of January 1678.

(signed) Thomas X Cramton

[2 witnesses]

his marke

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.