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CHAPTER THE SIXTH.

LAND AND LABOR IN THE EARLY COLONIES.

I.

Direct ownership of the soil.

Englishmen were accustomed to a land system the most intricate the world has ever seen. The feudal law in its passing had left behind a mass of technicalities, and the evasions of that law had given birth to a multitude of fictions. In many cases instruments of conveyance were ostensibly instruments to do something else, and they were often not registered, but kept secret. There was a jargon of land-law terms mastered by conveyancers, that made it sometimes difficult to transfer land.[1] In the century preceding colonization there came in the custom of piling up whole vocabularies of conveyance in one deed, with endless tediousness of repetition of clauses and provisos. The statutes were stuffed at the same time until the reader “was made giddy by a continual recurrence of the same form of words in the same endless period.”[2] Law came into disrepute as something hardly comprehensible and a source of endless entanglements to the lay mind.[3] Lawyers were forbidden in the colonial courts. In Virginia mercenary lawyers— that is, lawyers who took fees—were almost wholly forbidden until 1658, when they were totally ejected.[4]

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The New England colonies had a like prejudice, and would not suffer a single lawyer to becloud the acts of the early courts. When Massachusetts came to framing a working Constitution in 1641 there was a rivalry between Ward and Winthrop, educated as lawyers, and Cotton, who wished to proceed on a theological basis. The lawyers triumphed, but they did so by holding to the severe simplicity of old English law. The laws were not even called laws, but liberties; a man had the liberty of being hanged in certain cases. Somebody saw the absurdity, and appended a note explaining that liberty meant law, and the experiment of using this term for laws was not again tried in Massachusetts. The Dutch had but one lawyer among them, and they pretended to be unwilling to give either side in a case the exclusive benefit of his skill. They refused him permission to practice. Thus it came to pass that the earliest laws were simple and direct. Decisions were based on common sense and the merits of the case, as seen by the magistrate. There were other forces that held land laws to simplicity. There was little land in America that had come through feudal tenure. Even the king as a source of title did not usually appear in the deed. In the later seventeenth century lawyers and conveyancers began to be sought after; their services could no longer be dispensed with. The colonial laws and deeds after the Restoration became somewhat more intricate, and affected the English in their style. But the habit of passing

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land easily had become fixed, and though deeds might take on English forms and abound in repetitions, landholding remained substantially the same, the simple and direct ownership of the soil.

II.

Livery of seizin.

There was one trait of land law that had survived from the middle ages—that had survived apparently from nobody knows what remote antiquity.[1] It made so dry a matter as the transfer of land picturesque and dramatic. This was called livery of seizin—the delivery of possession. The seller stood on the tract to be conveyed and taking a bit of turf from the land, and, if there were trees, plucking a twig and thrusting it into the turf, passed it into the hands of the buyer. The custom was capable of many variations. Judge Sewall, of Boston, received seizin of six hundred acres of forest by “turf, twig, and splinter,” as if to embrace all the possibilities of timber land. In the history of Salem it is recorded that John Rush took a twig from a growing tree and a bit of green turf and said, “Here, son Thomas, I do before these two men give you possession of this land by turffe and twigg.”[2] In turning over the primitive records in Virginia one finds that “livery and sesen was made of a turffe of the earth of the within written land.”[3] In other cases “twigg and turff” marks another form.[4] Sometimes the livery is marked by a different form and personal estate is

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included. One Colonel Henry Browne, wishing to give his whole estate for the benefit of his wife and creditors, delivers to them “one silver spoone, part of premises as a voucher to lead to intent, purport,” etc.[1] When a house was to be delivered the seller took hold of the ring of the house door and formally gave it into the hands of the new owner. The ground with its appurtenances was thus handed over in a manner suitable to illiterate times and restricted territories. But land in a new country became an article of frequent merchandise.[2] Tracts of wilderness, remote and sometimes unsurveyed, could not be given by livery of seizin. In Maryland the mere certificate—the warrant entitling the holder to take up land—came presently to be passed about as current money. And, indeed, the custom of livery of seizin probably went out of use in America more rapidly than in England. In Virginia, the most conservative of the colonies, it was still somewhat in vogue in 1748, when it is recognized in a statute. Perhaps this was a mark of oncoming decrepitude. For a thousand years and more it had existed without legislation; when it became necessary to mention it in statute law the usage had passed its prime. In England to-day the seller often passes a ferule into the hands of the buyer of land without leaving the court room. So does the faint shadow of ancient custom stretch itself across modern life, growing more attenuated until at length it vanishes, no one perceiving where it left its last trace.

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III.

Communal holding primitive.

One mode of holding land, the oldest known to the English world, dating far back of the feudal system, seems very curious to modern eyes. It did not much attract the attention of lawyers in its time. Questions regarding it were settled almost wholly in the petty court of manor or township, and the great jurists had no call to discuss it. As a general rule it was a subordinate kind of landholding. The town community was tenant, as a whole, to the owner of the manor. The manor ownership might be litigated, might be taken away by violence, but the town held of the lord of the manor, whoever he might be, from time to which the memory of man runs not. If the ownership of the land came into question, it was as a whole. In this way it escaped almost entirely the notice of the land courts and of the older writers on the law of land. But as it went out of existence the township community began to attract the attention of the learned. Who should have the commons? What rights had the lord of the manor and the people under new conditions? And then inquiries were made by the curious into the origin of the commune, and presently a great literature has grown up about it mostly in a lifetime. Efforts have been made to connect it with similar forms in other countries. The great fact coming out in all this discussion is that the town commune was very primitive. It can be traced in

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England back to the fifth century. It disappears in the prehistoric past in its full vigor. A considerable portion of the surface of England was cultivated in this way in the seventeenth century, and it shows how far human development can be carried without breaking an ancient shell of society.

IV.

The village commune.

What was this village commune? Setting aside the disputed points in its ancient history—whether the commune was a combination at first of serfs, or whether it was a free mark—it seems probable that it once held all its territory in common, and that at the earliest period the arable land was allotted annually.[1] The advancement of civilization relaxed the severity of this communism. Little patches were dealt out permanently to residents, or at least to shareholders, but the division of land retained marks of the older order. The land of a single owner was scattered over the lands of the town apparently as last divided. The meadow, the pasture, the mast land, and the woodland remained an undivided common when William Marshall began the study of it in the latter part of the eighteenth century. The fences and gates were kept up by the proportionate care of the several cultivators, and the rents of the lord were paid by the “town” as a whole. In New England, where there was no lord, a town registry was established, and the town held the disposal of land in

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its own hands. “The furlongs”—that is, the “furrow-longs”—were held by each household, were fenced in a common field, and often for the first years of settlement were held undivided and allotted year by year. Each person had his “home-lot right” and “acre right” in the undivided meadow, forest, and upland. These were at first sold as a unit, and were termed “an accommodation.” The times of planting and of turning in of cattle were sometimes regulated in “field meetings” or “side meetings,” after the immemorial usage of the English township. The common fields were in primitive towns but three. Two were in different sorts of grain, the third was taking its year of rest as a sheep and cow pasture. Each cultivator had to raise the crop decided on by the majority in the side meeting or field meeting.[1] It was an animated scene in a common field when all the commune was planting or harvesting. There were New England towns that went back to the original norm of the town, and cultivated the land by dividing it annually until the town should fill up. Then when the town was fuller, they divided their arable land, giving each an equal chance. Society was prone to fall apart in a new country. The town community held it together in common helpfulness.

V.

The commune in England.

Agricultural villages were yet flourishing in England in the seventeenth century. Very many

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had gone down before the cupidity of sheep-raising landlords, but the greater part were yet in full vigor under one and another shelter. Some seem to have kept a stiff proportion of their ancient rights. We find ducking stool and pillory in one rustic town; in Queen Mary’s days there remained a prison and gallows in another.[1] Persons seeking justice outside the borough for any matter occurring in the borough should lose their entire freedom—that is, their right of property in the community.[2] Even in Connecticut one finds the right to appeal to higher courts was hampered and jealously watched.[3] In England the townships in James I’s time looked to overlords for protection. Some were resolutely independent.

VI.

The commune in America

That the New-Englanders were largely born to the commune is evident. They were mostly farmers, and farmers in that time were frequently found in village communes. Perhaps the small farmer was more susceptible to Puritanism; perhaps the condition of the towns was favorable to the spread of Puritanism.[4] Threatened with inclosure of their “wastes”—their mast land, their woodland, and their meadow—these villagers embraced the religion of the discontented. In New England the origin of the commune was soon forgotten. In the time of the Revolution we find John Adams proposing to inquire who among the

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fathers of Massachusetts suggested this mode of settlement. He had no notion of its English origin. From the first, Plymouth was organized somewhat on the communal model. Salem, after trying independent holdings awhile, adopted the same plan. The great migration of Winthrop seems to have brought along with it the plan of the village community as the very best one on which to settle Puritan churches and congregations. If it was predetermined, it was a master-stroke of policy; but whether it was a matter of forethought or not, the townsmen must many of them have been acquainted with it. Nearly the whole of New England adopted the same plan. From I know not how far east clear down the coast to Connecticut and Long Island, and down the Jersey coast to Delaware, the people organized in this way. One never hears any other plan proposed. The phraseology of the town community was theirs. The swineherd or hogreeve went through the town blowing an early morning horn, the cowherd, the goatherd, the gooseherd, the shepherd were all present, as needed in various New England towns. There were water bailiffs, there were drummers to call people to meeting and to make announcements, there were overseers of chimneys and of chimney sweepers, perambulators, cullers of staves and corders of wood, firewards and haywards or hedgewards, and all the half a hundred other occasional officers of the town. Their names passed easily from one to

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another, like coins worn smooth. One thing they missed—it was the lord and his rents. But when a Connecticut town moved to Newark they easily spoke of the quitrents as the lord’s half-penny. It would have been the lord’s penny in England.

VII.

Distribution of land.

The land was distributed with more or less equality in some towns and with more or less inequality in others. The houses stood rather compactly about the meeting-house. Every man had his home lot, his share in the cultivated field, his right to feed his cows in the common pasture and in common fields when crops were off, and so on, duly awarded him. A part of the fence or a gate, a pair of bars or “a lift” was assigned to him to keep up.[1] The town owned the realty and divided it according to its by-laws and its own good pleasure.[2] There were town cows sometimes, there was always a town bull, and a town horse was kept at Salem. Town sheep were not uncommon; a herd of two thousand paid all the corporate expenses of a certain town in Connecticut. The town sometimes kept packs of dogs to hunt wolves with. The tradespeople who wished to settle within the bounds of the town made bargains with the “selectmen” or others having charge of “the prudentials of the town” for a monopoly. Its mill sites and other privileges were disposed of in this way, the townspeople agreeing

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to help build the mill; to a blacksmith they gave a monopoly. The ideas prevailing were rustic; we read of one village which had reached a transition stage and which was alarmed lest the community should be “ruinated” by the influx of people.[1] It is to be remembered that no New-Englander, unless from choice, was solitary. He was always a member of a community and therefore civilized. Thus grew New England.

VIII.

Political importance of the town.

The word town underwent a change in New England, or at least a provincial sense became the main sense of the word. It did not mean at first a town, but a group of farmers engaged in agriculture on a particular plan. The New England village was almost precisely the same at the outset as the English farming community. But it was in a new country where there is a chance to change, where change is inevitable. In the first place, the township in Massachusetts took on governmental functions. It became the political unit; this was its capital change. Deputies were elected to the Legislature from the “towns,” large and small. The counties sank into insignificance, the towns were the sources of power. In the next place, the town boundary was also the boundary of the parish. The parish in Massachusetts was of primary importance. And, in the third place, the rulers, finding themselves freed from some of the cares of

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government by the autonomy of the towns, made even the farms attachments to the several towns. The town meeting, from being a side meeting to assign a date for the putting in and out of cows, became a place where the very sources of political power lay. The leading magistrates were outvoted by the representatives of the towns over and over. This was unexpected in a day when the magistrate was reverenced as the appointed of the Lord. The magistrates offered strong resistance, but the stronger resistance of the commons would not down. Efforts were made to overrule the lower House, but the deputies, having got the bit in their teeth, carried things their own way, and then the government fell into the hands of the towns, or rather, as has been said, into the hands of the churches, whose members did all the voting.

IX.

Society in the south.

The custom of granting farms in the first generation to prominent citizens in return for the assistance given in colony planting was discontinued. In the rivalry between independent towns and farms the towns by natural selection won the day. The prominent man, a little more eminent than the others, was content to take a larger share in the town instead of a separate grant. After the first generation there were fewer men of distinction engaged in planting towns, and hence fewer occasions for special

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grants. The New-Englander became exceedingly fond of the town system; he did not think of doing without it. Everywhere that New-Englanders went in the first and later generations the town system went with them. But it did not elsewhere acquire any such prominence as in Massachusetts and Connecticut. There were no political privileges, and the church was not of the prevailing order. Long Island, New Jersey, and certain regions in the Delaware Bay all had the inevitable town plan.[1] One or two churches moved away into South Carolina and Georgia, where their village plan was lost in the larger agriculture of the South.[2] If we had the evidence that is perhaps lost, we should find that the township or village community could be found germinating in the Southern colonies.[3] Such a sub-colony as that of Barkly or Berkley, to which an “incorporation by some vsuall or fit name” was promised, must have contemplated common lands and other elements of the commune.[4] That and its rustically the hundred, and its civic type the borough, were the form in which nearly all the local government of England was cast. But nearly all the men of Barkly perished at the hands of the Indians or otherwise. Indian massacres, the growth of a staple demanding much land, and the consequent rapid development of territorial greed, soon destroyed every vestige of the town in Virginia. A “hundred” in 1660 proved that a “commons” had been granted to it in 1631. If we look to Maryland it is hard

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to make out whether manors with “courts leet” established there very early had jurisdiction of commons, as is probable from the usual organization of a manor.[1] But the circumstances were most unfavorable to the community; the great staple of tobacco set people’s teeth on edge to become rich out of it. Cultivation almost from the start began to change its character. Great and greater shiploads of bond servants, free-willers, kids, and convicts were unloaded in Virginia and Maryland and sold for four years’ service.[2] For half a century or more large estates with white bond servants were the rule. In 1670 there were three times as many white bond servants as blacks in Virginia. Within ten or fifteen years after that, as the century drew to a close, Virginia ceased to buy white servants in any numbers, and plantations worked by black servants became the rule.

X.

Contrast between the North and South.

A very usual method of holding land in England was by the manorial system. The manors were entailed to the eldest son or other heir of the manor lord. But parts of these manors were village communities from the most ancient times. In New England they made village communities without any lord of the manor, and quitrents were left out of the count. The granting of farms quite independent of the town contemplated another English mode of landholding. But just as agricultural

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villages were crowded out in Virginia, so were independent farms driven to the wall in the Northeast. An order went forth that farms should belong to the towns in which they were situated. It was inconvenient to have them separate. The Church was the drilling ground to keep the people strictly in line with advanced Protestantism. The farmer could have no rights in common fields, his cattle were foreign to the pasture, his pigs had no right to pick up nuts from the common woodland, he had no acre rights when dividends were made, but he must attend the town church and pay the dues levied upon him for the clergy and other town burdens, and all burdens were put directly on the town. Individuals were unknown, the town was the taxpayer and the landowner. Sometimes, as at Salem, the town bought out a man’s holdings, his “accommodation,” exchanging therefor a farmstead carved out of the great unappropriated wilderness. But the favorite method of settling land came to be in a colony or town. By this means the ecclesiastical power was greatly augmented. The minister was usually the one educated man in the parish. He knew some Latin and Greek, and he had even a smattering of Hebrew. He was educated in what was the only branch of knowledge affected by minister or layman—theology. His dominance over the unlettered was tolerably complete. On the other hand, the Southern planter, with long stretches of woodland between him and his neighbors, could

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cultivate his wide fields in almost entire independence; his code of morals even was mostly his own, but his public interests were as extensive as his county or his province. This state of society begot self-reliance, and produced more leading statesmen than the other; but the people lacked the New England cohesion and susceptibility to organization, without which the statesmanship of the Revolution would have been vain. The Southerner, from his isolation and from other causes, became hospitable, eager for society, and in general spontaneously friendly and generous; the New England people became close-fisted and shrewd in trade; it is a trait of village life. But the benevolence of New England was more effective than that of the South, because it was organized and systematic. The village life of the extreme North trained the people to trade, and led to commercial development, and it made popular education possible. The sons of the great planters at the South were averse to commerce; they were also the most liberally educated and polished in manners of all the colonists; but the scattered common people could have few schools, and were generally rude and ignorant, even when compared with the lower class of New-Englanders, who stood a chance of getting some rough schooling, besides a certain education from the meeting-house and the ever-recurring town debates.

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XI.

Strangers forbidden.

A stranger might in old New England find a constable at the door some morning to warn him to leave. He was not expected to go, but his landlord must give security that he would not be chargeable, or at least the town was quit of him. People attracted by the superior medical skill of Boston physicians were thus warned. St. Clement’s Manor, in Maryland, at its Court Leet, orders John Mansell “to remove his inmate or give security.”[1] The towns had done so from the most remote times. Even in the Salic law, a thousand years before, no person was suffered to remove from one villa to another.[2] A trace of this is found in the Connecticut law that “noe Inhabitant shall have power to make sale of his accomodation of house and lands vntil he have first propounded the sale thereof to the Towne . . . and they refuse to accept of the sale tendered.”[3] The town community is dead in New England, though its methods of government remain, and even in the West and South there are traces of it in the language. In the old common field, strips were allotted from year to year, but one piece of land belonged to nobody. It was called “Jack’s Land.” Here the plowman left his plow, his hoe, his seed to the hospitality of an undefined somebody called Jack. The author of “Wonder-working Providence,” a New England captain, calls Ireland “Jack’s Land.” It was nobody’s country; one man and one party after another might take

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possession. Curiously enough, the word survives in America in an old game, played on a slate, where all drawn games are credited to “Jack,” and are marked in a division called “Jack’s Land.”[1] It is the very last attenuated ghost of the ideas of the ancient commune.

XII.

The Virginia parish.

In Virginia and the South the parish vestry took the place of the township in New England. Virginia was the Southern model as Massachusetts was the Northern. In the extant parish records of Virginia the vestry makes a contract for building a church, ordains a referendum for locating a church, and employs and dismisses a minister, builds a paling fence about the church, and “distreynes” for tithes.[1] The vestry also opens roads, appoints overseers of roads and holds them to account, levies fines for bastardy and concubinage and for disorder in church, orders the land processioned, relieves the poor, binds out “orphants,” appoints side men or collectors, and objects to the admission of non-residents lest they be chargeable. The parish also in one case elects a “select vestrye” from each of three precincts.[2] In 1694 Petsoe Parish divides itself into eight precincts for the processioning of land.[3] Here is nearly everything that was done by the New England town transacted by the vestry of a Virginia parish. The parish in Virginia stretched far—usually over an entire

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county; in New England it was restricted to a town.

The processioning of land was observed by the Virginians between Easter and Whitsunday. They made formal processions about the bounds of their several tracts, renewing the marks in the line trees. When a division line had been thus marked three times it was no longer open to question. In Massachusetts, Connecticut, and Long Island the townships, as landholders, were “to go the rounds” at regular intervals. Each individual owner of plowland and mowland within the town must trace his boundary every winter if his adjacent neighbor exacted it. The colonists were thus following a custom whose origin was lost in the obscurity before written records.

XIII.

Inheritance.

The leadership of the great families was sustained in New York and in the colonies south of Pennsylvania by primogeniture—the prerogative of the eldest son to inherit the landed estate in case the father left no will. Custom followed the law, and fathers who willed their property usually left most or all of the land to the eldest son, as belonging to him by prescriptive right. To primogeniture the aristocratic colonies added the dead hand of entail, by which the land was sent down for generations in the line of the eldest male. Even a clumsy fiction, called in law “common

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recovery,” by which the entail might be broken in England, was forbidden by statute in Virginia, and was not accounted applicable to the other colonies.

The Pilgrims at Plymouth and the Massachusetts Puritans had belonged to that politico-religious party in England which sought the abolition of certain old abuses. As early as 1636 Plymouth enacted that land should be held after “the laudable custom, tenure, and hold of the manor of East Greenwich”[1]—that is, in an ancient Saxon way preserved at the coming of William the Conqueror by the county of Kent. One characteristic of this tenure was that it divided the lands equally among the sons in case there was no will. Massachusetts, which expressly abolished many of the worst features of feudal tenure, by name, gave to the eldest son a double portion according to the Mosaic code, but divided the rest among daughters as well as sons. This system prevailed throughout New England. Primogeniture had come to be esteemed a natural right, and the Massachusetts leaders felt obliged more than once to defend themselves from the charge of having “denied the right of the eldest son.” They answered by showing the comparative insignificance of land in a new country, and took refuge behind the example of Moses. Pennsylvania took the same middle course of sheltering innovation under the law of Moses by giving the eldest son a double portion. The laws of some of the colonies made the

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land liable, to a greater or less extent, with personal estate for the debts of the deceased, which robbed the eldest of a part of his “insolent prerogative”; but it was not until the shock of the Revolution that primogeniture and entail were swept away, under the leadership of Jefferson and others. But land was so abundant that a thrifty younger son often earned in a lifetime a better portion than his elder brother. The eldest son’s double portion in New England survived the Revolution for some years. A very ancient mode of inheritance prevailed in some English boroughs, called among lawyers “borough English.”[1] By this custom the lands descended to the youngest son. It found no lodgment in the laws of the colonies, so far as I know; but in New Hampshire it was a widespread custom to leave the homestead to the youngest, who remained at home and cared for the old age of his parents.[2] This reasonable form of the custom of “ultimogeniture” lingers yet in certain parts of the country, as, for example, in some of the northern counties of New York. The other custom of a widow inheriting a third of her husband’s estate is even more widely prevalent, and is a matter of law in most of the States.

XIV.

Serfdom and apprenticeship.

The problem of England in the days of James I was how to be rid of its poor. They had, many of them, been turned out of a living by the inclosure

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of commons in the mania for sheep husbandry, and some of them had had the villages pulled down about their ears.[1] They were sent a-wandering, living as they could live by hook or by crook. Necessity made many of them rogues, and the desire to have done with rogues was so intense that England hanged its thieves out of hand. Henry VIII thought to be rid of such vermin of society, and he hanged, if we may believe Harrison, two-and-seventy thousand, including “great theeves, pettie theeves and roges.”[2] In Elizabeth’s reign three or four hundred felons were eaten up annually by the gallows, and James I merrily carried on the work of extermination; one reads of “twenty hanged up at a clap,” in one place. But the vagabonds did not grow fewer.

Recent serfdom had left its mark on the poor man. He had been freed, not from benevolence, nor from any motive having regard to the personality of the serf. Wickliffe and others had taught that it was meritorious to free a man from bondage who was a Christian—that is, who had been baptized. This scruple fitted to the churchly conscience of the age; it grew more and more exigeant. “We think it pious and meritorious with God to make certain persons absolutely free from the yoke of servitude who are at present under villenage to us,” said Henry VIII. Elizabeth and James, less scrupulous on this point, proposed to sell to those whose blood was tainted with slavery the privileges of freedom.[3] It was not till the

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eighteenth century had dawned that Chamberlayne’s State of England, an annual publication, could drop its set phrase, “but few now in England,” and say, “Now slavery is entirely thrown away and every Servant Man or Woman are properly hired Servants.”[1] But the habit of regarding the peasant as a recent serf had its influence in the treatment of him.[2]

The “spirit,” who was later called a crimp, was on the watch for him. Did they need more soldiers in Flanders? The spirit, by means best known to himself, packed off the poor man to Flanders. He was equally ready to ship him to any other country for a reward. The Virginia colony began to ask for people. The wilderness was hungry for laborers. The spirit shipped little children by the score down the Thames and off for America. Parents followed the vessels all the way to Gravesend, but the law would not help them; Virginia wanted laborers. Sometimes a parent could pay enough to get the lad released. Men were carried also to that abode of hopelessness. From the first there were two general classes: free apprentices and convicts mostly for petty crimes. “Apprentices,” says Chamberlayne, “are a sort of servant that carry the mask of Pure villains or Bond slaves, differing however in that Apprentices are slaves only for a term and by, covenant.”

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XV.

Servants in the colonies.

From the outset there were in New England as well as in Virginia apprenticed servants, who had been bound for a long term before leaving England, and were treated as a recognized species of property. Winthrop speaks of the “money” the three hundred servants had cost that they were enforced to set free for want of food. Cradock and others who did not come to New England sent servants to take care of estates for them. In 1629 De Vries, the Dutch traveler, saw English men and women staked and lost at cards, and he bluntly told the Virginians that he had “never seen such work in Turk or Barbarian.” George Donne, the author of a manuscript in the Bodleian, saw servants brought to Virginia by the shipload after 1630, and he describes the horrors of the traffic, their insufficient food, their ragged and barefoot condition, and their landing far from their destination and being forced to march the rest of the way in their enfeebled state.[1] Nearly all the emigrants that came between 1620 and 1650 were bondsmen.[2] This does not imply that they were not some of them educated, for many Latin-school men were obliged to sell themselves to the crimp. After the Restoration servants were sold in great numbers to Virginia. Fifteen hundred a year is the estimate of Berkeley at a time when Virginia contained but two thousand black slaves. As the term was for four years, there were six thousand

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white slaves always in bondage there. Before 1650 the term of some was ten years or more, and that of many was seven or eight years. After the restoration of the Stuarts in 1660 the term of service was permanently reduced to four years.

XVI.

Fate of servants.

English laborers bound themselves to serve a term of years, fairly hoping to better their condition in America; and men in domestic or other trouble would sell themselves for a term of service in the plantations, plunging into the abyss and trusting to luck to come up in better plight in a new world. Husbands forsaking their wives lost their identity in the transport ship, and wives fleeing from unbearable husbands were swallowed up in the flood. Runaway children and fleeing apprentices were greedily welcomed by the crimps; felons and prison breakers pursued by hue and cry were quickly safe on board. In those days of slow communication, renegades of every sort were as utterly lost to their old lives in America as they could have been had they migrated to the moon. It was an age of flogging; criminals, soldiers, sailors, pupils, children, and now and then even wives, were thought the better for scourging. One ought hardly to be surprised, therefore, at the numerous and cruel whippings of English servants, women as well as men, who were scourged naked with hickory rods and washed

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with brine; the punishment continuing sometimes at intervals for hours, or being renewed day after day. There were also in use, by masters and overseers, thumbscrews, sweatings, and other such devil’s devices. The food allowed was sometimes a scant diet of Indian meal. The sick servant was neglected lest the doctor’s charge should exceed the value of his remaining service; and one thrifty master in Maryland required a servant, sick of a mortal disease, to dig his own grave in advance, in order to save the other men’s time.[1] In 1705 Virginia prohibited the secret burial of servants and the whipping of “Christian white servants” naked, without the consent of a justice. Great numbers fled away from the sharpness of bondage, taking the risk of cruel punishments and an extension of their terms if captured. During the existence of New Netherland, Dutch servants broke away to New England or Maryland, while English servants from both directions made their way to the Dutch territory. With New England the Dutch had at one time a treaty for the return of those “who carried their passports under their feet.” To get away on shipboard, to seize a shallop and make off to a neighboring colony, and represent themselves as shipwrecked mariners, and to fly to the Indians, were favorite devices of runaways. So great was the number of fugitives that “inferior persons” were always liable to arrest on suspicion. North Carolina was filled with runaways from Virginia. In 1663 a dangerous conspiracy of indentured servants

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was discovered in Virginia, and a general fear of the class, among whom were many desperate characters, probably prompted much of the severe treatment inflicted on bondmen. The Pilgrims found that servants led astray “the unstaid and young.” The Massachusetts colonists before starting essayed at considerable cost to sift their servants, excluding a corrupt element; they even sent back two boys who had shown vicious propensities on shipboard. But the large proportion of penalties meted out to servants during the first years of the colonies shows how slight was the effect of the sifting process. Even in the colonies where the convict element was shut out, many of the servants were obtained from dangerous classes, such as “sturdy beggars, gypsies, and other incorrigible rogues, idle and debauched persons.” They could “eat till they sweat and work till they freeze,” in the quaint words of a traveler in New England. It was probably from those who had been servants that the sea rovers fitting out in the colonies found recruits. The pirate James, when short of hands, lay off the Virginia coast and captured transport ships, many of the convicts and servants in them preferring to risk a halter in cruising “on the grand account” to pining in colonial bondage. In some instances the criminal transports rose and slaughtered the crew, taking the ship into some out-of-the-way harbor and escaping. The degradation of the women servants was a continual source of evil; laws were made to correct their immoralities, and other laws

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to prevent these “Christians” from intermarrying with the heathen Africans. In all the colonies there were those brought as servants, even as convicts, who rose to wealth through industry and frugality, two virtues on which a new land pays high premium. Some founded families that attained to honor and influence.

XVII.

Convict servants.

The severity of English penal laws occasioned evasions of all kinds; for Anglo-Saxon people prefer to reform an abuse by avoidance rather than by direct abolition. The old provision for “benefit of clergy” was stretched to an absurd comprehensiveness. The need for men in the colonies offered a new opportunity for merciful evasions of the death penalty in cases of minor felony. It became common to pardon thieves on condition of their accepting a seven years’ term of service in the colonies, and the English State-Paper Office has many curious petitions for this commutation.[1] As early as 1622 a horse thief indicates that he much prefers service in Virginia to hanging. At a later period a husband is found petitioning on behalf of his wife, condemned to death for stealing three-and-sixpence, that she might be transported to any plantation. After the Restoration it was enacted that justices, at their discretion, might send “loose and disorderly persons” to the colonies, and at intervals a hundred or so of “Newgate birds” were taken in a close lighter from Blackfriars to Woolwich,

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where they were put aboard ship for America.

Bristol was the chief center of the colonial trade; here even the small traders and sometimes the peddlers had ventures in the colonies. Bristol, therefore, naturally took the lead in the servant trade, and most of the great officers of the city became involved in kidnapping. When, in Bristol, a man was on trial for some small crime, the petty officers would persuade him to beg for transportation in order to escape being hanged. These transports were then assigned to the mayor and each of the aldermen in turn, who sold them to the plantations, and grew rich from the spoils of the poor and the desperate. In the most paradoxical scene in judicial history the worst of judges, George Jeffreys, himself reeking with corruptions and cruelties incredible, is found arraigning aldermen of this opulent city for their share in this trade. Ordering the scarlet-robed mayor from his seat on the bench to a place in the prisoner’s dock, he cried, with brutal exultation, “See how the kidnapping rogue looks!” He ranted at the aldermen in words too vile to be reprinted. Yet the selling of condemned men and the condemning of men that they might be sold were practiced openly at the court of James II at this very time. The ladies of the queen’s bedchamber and the queen herself eagerly snatched at the profits from the sale of the rebels of Monmouth’s rebellion, whom Jeffreys had just then condemned; even

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William Penn begged for twenty of them for the Philadelphia market.

XVIII.

Introduction of slaves.

In 1619 a “Holland man-of-war,” short of water and food, put into the James River, and cast anchor before the only English settlement on this side of the globe. The captain was forbidden to land, but as he threatened to throw overboard some slaves captured in the West Indies, Captain Kendall, commanding at Jamestown, exchanged some “presents” for them. These fourteen “negars” were the first slaves in English America. The opening of new settlements and the lighting upon new staple products produced a demand for unskilled labor which the English “spirits” or crimps could not adequately supply. Negroes were therefore brought from the West Indies, and afterward direct from Africa or Madagascar. The labor of slaves increased the ability of the colonies to “take off” English goods; it is therefore not surprising that a Committee on Foreign Plantations, soon after the Restoration, declared that “black slaves were the most useful appurtenances of a plantation.”

The English serfs had received their freedom chiefly on theological grounds as fellow-Christians, with some additional weight thrown into the scale by their being fellow-Englishmen. But freeborn Englishmen were by custom sold into severe bondage for long terms, and even sent beyond seas

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in large numbers; there could, therefore, be no repugnance in the minds of the colonists to the enslavement of blacks, who were not only pagans, but so different in appearance as to seem to be another species, not entitled to human consideration. At least, if they came from Adam, they were by some theological experts identified with the cursed descendants of Cain, for Ham was thought to have found a wife in the land of Nod.

XIX.

African slavery.

Slavery is more ancient than historic records. In the centuries of warfare between Christians and Mohammedans, the practice of enslaving captives outlawed by their “infidelity” had prevailed. Negroes were easily confounded with the Moors, and thousands of blacks were annually brought into Europe for sale as early as the middle of the fifteenth century; and a century later, in 1553, one finds four-and-twenty of them brought as far as England. From Spain first, and then directly from Africa, black slaves had been carried to the Spanish colonies to develop the mines. The Royal African Company of England announced to Charles II, in 1663, that the very existence of the plantations depended on an adequate supply of negro servants; and though their declaration was due to cupidity, it was at least true that all rich and successful American colonies up to this time had possessed slaves. So late as 1735 the Lords

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Commissioners of Trade declared that the colonies “could not possibly subsist” without an adequate supply of slaves. Indeed, the first effect of the introduction of slaves was a rapid advancement in subduing forests and opening sources of wealth.

For nearly sixty years after the beginning of negro slavery here, there seems to have been no scruple or question about it. The lifelong bondage of negroes was tacitly justified by their heathen condition. When, in 1677, the question was first raised in an English court, Africans were held to be slaves by the custom of merchants and “as being infidels.” This notion was so general that very many planters resisted efforts to instruct their slaves in the Christian religion, lest baptism should emancipate them. To remove this obstacle the Virginia Assembly had enacted, in 1667, that the conversion of a slave should not invalidate the owner’s claim to his services, and similar laws were afterward made in most of the other provinces. But these laws were merely of colonial authority, and were not sufficient to overcome the scruple of covetousness. A proposal from England to encourage the conversion of the negroes “would not go down” with the New York Assembly in 1699. Philanthropic exertion for the negro was at first wholly religious, seeking his conversion not so much for the good of the negro as for the glory of Christianity. The attention of James II having been called to the pagan condition of the negroes, he resolved at the council board, in 1685,

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that all the slaves in the plantation should be christened; the thought of baptizing them in a mass by royal order, whether they would or no, was no doubt doubly pleasing to him as a zealot and as a lover of arbitrary methods. Efforts to convert the slaves in the seventeenth century were few and languid, the most notable being those of the superannuated Eliot, in Massachusetts. There were a few individuals who, like William Penn in 1700, had “a concern for the souls of the blacks”; but many held them to be quite without souls, and hence not proper objects of concern.

XX.

Anti-slavery movements.

The first voice in America to speak against the perpetual bondage of man to man was heard in a memorial of some Friends of Germantown in Pennsylvania. This protest, in vigorous broken English, was addressed to the Philadelphia Yearly Meeting in 1688, and it opened an agitation which resulted, seventy years later, in bringing the Philadelphia Quakers to a conclusion opposed to slave-holding. In the fundamental law of Massachusetts and Connecticut, villanage and other feudal servitudes were prohibited, and in 1646 the Massachusetts General Court actually undertook to send back to Africa negroes who had been kidnapped by a slaver, and to send with them a letter of apology and explanation. But the Calvinist reverence for the law of Moses was a less elastic

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standard than the “inward light” of the followers of Fox. If the early Puritan, bound to the letter of Scripture, was less likely to run into aberrant fanaticism than the Friend, he was also less quick to gain new and modern views of duty. Refusing to participate with “man-stealers,” the textual conscience of the Massachusetts forefathers did not shrink from selling Indians captured in war into chattel slavery, or from buying slaves who appeared to have come into bondage otherwise than by downright kidnapping. These nice distinctions could not be kept up, and thousands of negro slaves were sold into New England without any question for conscience’ sake. The scruple about human liberty with which the Puritan forefathers had come to this country had been swiftly forgotten. Some merchants of Boston were engaged in the Guinea trade, of which, however, Newport was the great center. Before the anti-slavery writings of the Quakers, Hepburn, Burling, Lay, and Sandiford, had appeared, an influential but rather timid voice, that of Judge Sewall, was heard opposing the importation of slaves to Massachusetts. He had been led by the narrow theological spirit in which he was bred into grievous mistakes in the witchcraft trials, but he was an honest and even a scrupulous man. Fond of popular favor and shrinking from censure, it cost him a struggle no doubt to give to the press, in 1700, his little tract against the slave trade, entitled The Selling of Joseph. Its influence was probably not great.

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So closed the seventeenth century. The progress in humanity had been very slight. The number of bond servants was constantly increasing; the black tide of African slavery was ever swelling. No voice worthy of the name was yet heard in protest.

Elucidations.

Note 1, page 273.

“‘Fine and recovery,’ ‘conveyance to uses,’ ‘lease and releases’—all the circuitous forms that evasion had been compelled to assume—survived, together with the whole storehouse of factitious science that had grown up round them. Once launched into existence, the system of private and unregistered conveyance had generated a science and a vocabulary applicable to the numberless ‘estates’ created in law, which made every title a matter of intimate personal history; hence arose the necessity of investigations requiring the most practiced and recondite knowledge of the old body of statute law which feudalism had left behind it.” Hoskyns, The Land Laws of England, in Systems of Land Tenure, p. 183.

Note 2, Page 273.

See the note on p. 482 of Herring, vol. i, on the alternate forbidding and licensing of lawyers in Virginia. In 1642 the new governor had things his own way and admitted attorneys; in 1645 mercenary attorneys were expelled, in 1647 the act was made stronger, in 1656 all acts against mercenary attorneys were repealed, and in 1658 a vote of total expulsion was taken.

Note 3, Page 275.

“The particular usages of the Saxons, however, were very similar to the present. The twig and turf were the simplest method of livery, and by the twig and turf did they give seizin to the purchaser. when grants were made to the church, a twig was usually laid on the altar, This occurred so frequently that it would be useless to cite instances in its support. A tree growing on a soil was regarded as a part of it, hence a branch of it served to give seizin. . . . When Ulphus, king of Deira, gave lands to the church of York he ‘took the horn, wherein he was wont to drink, and filling it with wine, kneeled before the altar’ and deposited it as a symbol of possession. . . . In the time of

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Henry III, William Earl of Warrenne and Surrey, on a grant made by him to the priory of St. Pancrace, delivered seizin by the hair of his head.” Watkins, Law of Tenures, pp. 81, 82, note xxxiii. See the article on Charter Horns in Andrews’s Old Church Lore.

Note 4, page 276.

In some parts of England and Ireland tenures are by the custom of some manors conveyed by a bit of rush, straw, or hay. I have this by report as to Ireland, and in the present day. See also the custom of Yetminster, Dorset, in Watkins on Copyholds, 544.

Note 5, page 278.

Private property in a strip in a common field came in only when fields become permanently arable. Nasse, 11. North Devon common lands were cultivated one or two years and then left to pasture in the latter part of the eighteenth century. Marshall’s Rural Economy, 259. New England had land in considerable quantities reallotted every year at first. Land was still allotted thus in England in some places. It ought to be remarked here that Rhode Island was first organized into towns, and for a long time was a congeries of independent towns. From the vices of that system the State has not yet recovered. First Assembly of Rhode Island, 15. Rehoboth, on account of its remoteness, was for a long time virtually independent, and was built in a semi circle. Newman’s Rehoboth, 15, 16. In Stiles’s manuscript I have seen an account of a town built in a circle about the church.

Note 6, page 279.

Mr. Seebohm calls attention to the animated scene in the common fields at the time of planting, as described by Piers Ploughman in the prologus:

Note 7, page 280.

Mr. Ashton, in his Humour, etc., of the Seventeenth Century, gives this:

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And this other:

Note 8, page 282.

A penny an acre was the result of knight’s fee system as shown by Seebohm very ingeniously, p. 39. Towns paid quitrents as a whole in New York State. There is never any separation of a town into severalties in any State. The town processions the land, pays taxes, etc. Livingston and Smith’s Laws of New York, vol. ii, 237-249. In the Grants and Ceremonies of New Jersey of Leaming and Spicer, 1664, it is provided that the lots shall be of certain sizes, “excepting Cities, Towns, and the near Lots of Townships. By 1672 towns were becoming common, and the regular laying out of Land, Rules for building each Street in Townships and Quantities of Ground for each House Lot, the same is left to the freeholder or first undertaker thereof.” The antiquity of the swineherd may be appreciated by the mention of him in the Thorold Rogers in the Middle Ages, Work and Wages, 83.

Note 9, page 282.

The law that each cultivator was accountable for a portion of fence, and must pay the damage done by cattle intruding, was as old as the laws of Inc in the seventh century, and probably much earlier. This equitable law existed in New England, New York, New Jersey, etc., a thousand years after. Compare Seebohm’s Village Community, 110.

Note 10, Page 283.

Of primitive town government no better outline is afforded than that found in Connecticut Records, i, 30 (1639):

“The Townes of Hartford, Windsore, and Wethersfield, or any other of the Townes within this jurisdiction, shall each of them have power to dispose of their owne lands vndisposed of, and all other comodityes arysing out of their owne lymitts bounded out by the Court, the libertyes of the great River excepted, as also to choose their owne officers, and make such orders as may be for the well ordering of their owns Townes, being not repugnant to any law here established, as also to impose penaltyes for the breach of the same, and to entreat and levy the same, and for non-payment to distrayne, and yf there be noe personall estate, to sue to the Court to sell his or their house or land, for making satisfaction. Also each of the aforesayd Townes shall have power by a generall consent once every yeare to choose out 3, 5, or 7 of

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their cheefe Inhabitants, whereof one to be chosen moderato^r, who having taken an oath prouided in that case, shall have a casting voice in case they be equall, w’s sayd p’sons shall meett once in every 2 monthes & being mett together, or the maior part of them, whereof the moderato^r to be one, they shall have power to heare, end and determine all controversies, eyther tresspasses or debts not exceeding 40s. provided both partyes live in the same Towne; also any two of them or the moderato^r may graunt out summons to the party or partyes to come to their meetings to answere the actions; also to administer oath to any witnesses for the clearing of the cause, and to give judgment and execution against the party offending. But yf eyther party be grieved att the sentence, he shall haue liberty to appeale to a higher Court, p’vided it be before iudgment and execution be graunted. But yf it fall out there be nee ground for the appeale, the Court to confirme the iudgment and give good cost and fine or punish the party appealing.”

Note 11, page 285.

Of town communities in “Delewer” Bay in 1670 the following is from Denton’s Brief Description of New York: “These persons being thus qualified settle the place and take in what inhabitants to themselves they shall sec cause to admit of until their Town be full; these associates thus taken in have equal privileges with themselves and they make a division of the Land suitable to every man’s occasions, no man being debarr’d of such quantities as he hath occasion for, the rest they let lie in common till they have occasion for a new division, never dividing their Pastureland at all which lies in common to the whole Town.” There is some ambiguity in Denton’s description, and the towns may refer themselves to New Jersey and New York. An instance of village community of French origin is found in Parkman’s Discovery of the Great West, p. 7. Here there are town lots with arable land outside of the manor and an annual rent to the lord of the manor. Parkman’s authority is Abbé Faillon’s La Colonie Française in Canada.

Note 12, page 285.

In enumerating “The Common Land of the companie,” Sir Edwin Sandys says, “three thousand in each of the Power old Burroughes.” Here the borough is made the local unit, as was frequently the case in England—a district with common lands. The Records of Virginia, p. 15. In New England the town became the borough for representation; in Virginia the borough or hundred began, but the unit soon drifted into the county with

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which the parish was almost always coterminous. Bacon’s Laws of Maryland, 1694, provide for the laying out of a common for a new town. This was the usual course of procedure. Long before this time it is probable that manors were given up. Copley to Lord Baltimore, April 3, 1638, in Calvert papers, makes a strong statement of the difficulty of maintaining them in Maryland.

Note 13, page 285.

Charter to Throckmorton, Yeardley, R. Berkley, and Smythe, in Smith of Nibley MSS., 57: “And shall also within the said terme of seaven years grant to the said Adventurers . . . letters and grants of incorporation by some vsuall or fit name or title with liberty to them and their successors from tyme to tyme to frame and make orders ordinances and constitutions for the rule . . . and directynge of all persons to be transported and settled vpon the land hereby intended to be granted,” etc. This bears date February 3, r618 (1619), and was no doubt the model on which many grants were made at that time. It indicated a liberal gift of local autonomy hardly to be realized without the granting of township government or of government by the borough or hundred. The colony of Virginia was to have no jurisdiction except in case of “tryals of matters of Justice by appeale or otherwise.” This was precisely the case with the more independent towns in England. Gomme’s English Village Communities, generally.

Note 14, page 290.

But the uninclosed vacant lots on which speculators planned to build, and on which cattle were pastured, took the name of commons and held it all the way into the interior. Commons they are to-day, but the title and the thing are passing into swift forgetfulness. Boston Common remains a part of the original common land of the town, and there are some others.

Note 15, page 290.

The same men were reappointed by the Petsoe Vestry in 1699. “oversears of the highways” for another year, “they having not perform’d the offiss thare unto belonging the year Past.”

Note 16, page 293.

Harrison narks this difference in descent in Elizabeth’s day: “Burrow kind” where the younger is preferred before the others, “which is the custome of manie counties of this region “; also the woman to have the third of her husband’s possessions.

Note 17, page 294.

Nasse cites the statute of 1488, chaps. xvi and xix as marking the beginning of inclosures of commons. The last was “An act

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against pulling down of townes.” It had no doubt begun somewhat earlier. In 1513 a law of Henry VIII prescribes that the “pulling downe and destruction of townes within this realm, and laying to pasture lands which customably have been manured and occupyed wyth tythage and husbandry,” should be restored. So the succeeding acts of 24 and 25 Henry VIII. The reformer Becon denounces the “wrong they have done to the poor commons, as by making common pastures several to themselves,” etc. Fortress of the Faithful, 598. The character of Latimer’s sermons against the abuse is well known. In 1549 the peasantry rose in an endeavor to restore the commons. Harrison says in 1577 that some “daily do make beggars inough whereby to pester the land espieng a further commoditie in their commons, holds, tenures, dooth find such meanes as therby to wipe many out of their occupiengs, and turne the same unto his private gaines.” Holinshed, i, 308. In 1607 riots are noted against inclosures of commons and wastes. Nichol’s Poor Laws, 232. There is a sermon on the Rainbow preached at Paul’s Cross in 1617 by Mourne, in which he graphically says: “Depopulators have inclosed fields, townes, churches, and all, pulling those down which their religious forefathers did build up, stopping doores with thornes and their windows with brushes; yea, covering their roofs with thatch; nay, leaving them naked or else turning these holy places into barnes or sheepcoates or other prophane uses,” p. 47. See also Stafford’s A Brief Conceipt of English Pollicy, 1632. Harleian Miscell. ix, 199. The extracts that might be quoted are all but innumerable, but Marshall in 1786 shall end these where he says that the spirit of inclosure is such that in half a century more an open field or undivided common may be rare, It was the cry of oppression at first, when the change to sheep farming was made. Selden says Depopulatio Agrorum is a great offense in the common law. And yet this revolution in agriculture, so unjustly enforced, was beneficial to England. The peasants thrown out to beg lived or died according to their shiftiness. The cruel law of natural selection destroyed those unable to adapt themselves; human advancement is pitiless and unforgiving.

Note 18, page 294.

Chamberlayne’s State of England. All the volumes after 1710 say of villanage, “But this kind of tenure is in a manner out of use.” I am aware that this brings serfdom further down than the authorities by a hundred and fifty years. The copy I consulted lacked the volumes between 1702 and 1708, but the change

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takes place in that interval. Serfdom went out before this time it had practically been out of use for long generations.

Note 19, page 295.

Servants hired or apprenticed “were subject to be corrected by their Master or Mistress, and resistance by a servant is punished with some severe penalty,’’ says Chamberlayne. A fatal blow from a servant to a master was petty treason, and brought on him capital punishment. He had no redress for ill treatment. The hired servant as well as the apprentice might be sold for his unexpired time. He must work for a price fixed by others, and no man would hire him without the permission of his former master. He was a slave for a time in all but name. Any combination on the part of the employed looking to a strike was treasonable.

Note.—I have reserved the Carolinas and Pennsylvania until they can be fully treated. Their history in the seventeenth century is short.

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