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Status Of Servants And Freedmen.
A careful study of the laws connected with white servitude and an examination of their application by the courts gives, on the whole, a more favorable idea of the legal and social status of the servant and freedman than is usually found in histories dealing with this matter.
Most historians have treated the subject in a very cursory manner and for that reason have given us a rather distorted idea of the institution. In nearly every case they have selected the most severe laws and the most barbarous cases of treatment and given these as a representation of servitude in all places and at all times. Laws for the protection of the servant and their enforcement by the courts; instances of indulgence and kindness on the part of the master are rarely mentioned.
To condemn the entire system because of the actions of the law breakers of the time is hardly more just than to judge our own state of civilization by the numerous murders and other crimes that are daily committed in our midst. Like all other systems of bondage this had a tendency to develop the brutal nature of both master and servant, but a careful study of the institution reveals much that is good as well as much evil.
To form a correct idea of the status of the servant we must use as a standard the status of the freeman of the same period. The history of white servitude records many customs and abuses that are revolting in the extreme; however, as compared with freemen the position of servants in the early years of the colony was much better than in later years. The Palatines and other German races, who in the later years formed nearly all of the servant population, knew little of the laws and language and were an easy prey to the abuses of traders and harsh masters. They had been used to very little liberty at home and were slow to assert their rights in America.
At no time in the history of Maryland was the condition of the servant that of a slave. He always possessed rights which must be respected and which were generally enforced by the courts. He was free to bring cases before the courts, to summon witnesses, and to demand a jury trial. As soon as his indenture or term by custom had expired he at once became a freeman with all the rights of a British subject. In the early years of the colony, freedmen entered the Assembly and no doubt had no little influence in framing the laws in favor of the servant. By a comparison of the lists of imported servants given by Neill1 with the lists of members of the Assemblies, we find that in the Assembly of 1637-38 there were fifteen former servants. There was also another who had been a servant of Claibourne and Clobery but who had purchased his freedom for a yearly payment of 300 pounds of tobacco when Evelin took control of Kent Island.2 In the same manner we find that in 1642 there were thirteen freedmen either present in the Assembly, excused for absence or fined for nonappearance. Other instances are found in later Assemblies of the presence of freed servants. Cuthbert Fenwick, although brought in as a servant by Captain Cornwallis, became the latter's attorney and one of the most prominent men in the colony as well as a member of several assemblies.3
The first courts of Maryland were erected by the Assembly of 1638-39* Among the offences to be determined by
1 Founders of Md.
*Streeter Papers, p. 25, note.
'Freedmen were also elected to the House of Burgesses of Virginia.—Fiske, Old Virginia and her Neighbors, II. 186. Servants in Massachusetts while under indenture were given the elective franchise during the first sixteen years of the settlement. Hurd, Laws of Freedom and Bondage, I. p. 255. 'Arch, of Md. I. pp. 46-49.
the Lieutenant-General, by any one of the council, or by the Justice of the Peace was the ill treatment of servants by their masters. Any master refusing to provide sufficient food and clothing for his servant or neglecting to fulfill the contract for wages, etc., was to be imprisoned until he gave security to perform the order of the judge. For a second offence the indenture was to be cancelled and the servant set free. Masters were forbidden to work their servants on the Sabbath or any other holy day under penalty of thirty pounds of tobacco or five shillings sterling for each offence. Servants not performing their part of the contract were to be whipped or otherwise corrected at the discretion of the court.5 In the records of this Assembly is found the first mention of a law which is the most severe of all laws against the servant. Among the crimes enumerated as felonies are manslaughter, arson, forgery, etc., and "Stealth of ones self which is the unlawful departure of a Servant out of service or out of the Colony without the privity or Consent of the Master or Mistresse." The penalty for each of these offences is fixed at "death by hanging except the offender can read clerk like in the judgment of the court.8 The Assembly of 1641 also made running away felony and punishable with death, but here again it was provided that the proprietor or the governor "shall at the request of the partie so condemned exchange such pains of death into Servitude" and that "such exchange shall not exceed the time of Seven years." 7 Thus the death penalty for fugitives so often quoted as an example of barbarism really resolves itself into an extended servitude.
A study of actual court cases gives us a far better idea of legal status of the servant than a mere perusal of the laws. The prominence of the master seems not in any case to have affected the legal protection of the servant. In May,
1644, William Harrington recovered 1,525 pounds of tobacco from Leonard Calvert as custom dues for four years' service.8 In January, 1656-67, a servant, Henry Billsbury, complained in the Patuxent court that his master, John Little, had cruelly treated him. The court ordered the sheriff to accompany the servant to his home and require the master to give bond for good treatment of the servant and for the master's appearance at the next court to answer to the charges brought against him by the servant. If the master should refuse to give such bond the servant was to be taken from him and the master was to remain in custody of the sheriff till the bond were given.8 In 1652, Mark Benton, servant of Robert Vaughan, commander of Kent Island, petitioned the court for his "freedom with corne and clothes." The court decided in his favor.10 At the December court of Kent Island, 1652, Thomas Weest, servant of Henry Morgan, gentleman and one of the commissioners of Kent Island, was allowed "his freedom and freedom corn with whatever besides may be usual according to the custom of the country."11 In this suit the claim of the servant was evidently not proved to the entire satisfaction of the court as the master was given a certain time in which to produce the indenture but the servant was given the benefit of the doubt.
Sometimes the servant was hired out by his master to another planter, in which case the employer was responsible for the food, clothing and proper treatment of the servant. In the October term of the provincial court, Simon Bird, a servant who had been hired to Robert Taylor, complained that he had not been provided with necessary clothing "which complaint appeareth to this Court to have Sufficient ground." The court ordered Taylor to properly clothe the
servant, and the commissioner was authorized to see that the order should be carried out.12
The testimony in these trials sometimes exposes extreme cruelty on the part of the masters. In the September court, 1657, a servant William Ireland complained that his master, Captain Morgan, inhumanly beat him and compelled him and the rest of the servants to prepare their own food at night after their day's work. He also alleged that they were often without sufficient food. The court forbade the master to beat his servant "unlawfully" or to work any of his servants at night unless in case of necessity.13 No penalty was imposed in this case and it was probably the first offence.
Another revolting case of cruelty came before the Kent county court, September 28, 1674. William Drake, a servant of John Wells, complained that "your petitioner's master have several times abused by giving me unlawful correction, by tying my two handwrists together, hanging me up to ye gunne racks, and whipped me without mercy giving me at least one hundred blows upon my bare skin, and let me hang so long yt ye blood started through and out of my fingers and all my hands pealed, and his chiefest ayme was to strike me upon my members, when he was whipping me. After he commanded me to goe with him into ye wood along with him; which I did accordingly, to his desire, and when he had me there he was so unmerciful in beating of me, that he broke a hycory stick all in pieces—several other matters I could alege, but loth to be tedious."14 Unfortunately the action of the court is not given in the records. This is an extreme case, and very few like it are found in the records of the court. Even the worst treatment recorded will compare quite favorably with the treatment