History of the Supreme Court
of the United States
THE LABORING, SERVANT AND SLAVE CLASSES,
AND THE GROWTH OF THE TRADING CLASS
While an extremely powerful and dictatorial landed aristocracy was thus being created by royal grants and official favoritism, or by illegal or fraudulent methods, severe statutes were enacted in all the colonies, the effect of which was to create and perpetuate a dependent and servile class of workers whom the laws differentiated into various menial classes.
Punitive Puritan Laws.
The extraordinarily profound piety ascribed to the Puritan fathers was accompanied with a series of drastic laws passed by them prescribing the sharpest limitations for the many of both sexes compelled to work for wages, or for those whom misfortune, in one way or another, branded as defenseless objects of legal and religious persecutions.
The act of the Massachusetts authorities in 1630, passed in response to the self-interested demands of those who had already acquired property and who needed a constant supply of subservient workers, was the first measure in that colony the purpose of which was to form a permanent class of practically hereditary working people. This act, Respecting Masters, Servants and Laborers, opened by decreeing that no servant should give, or sell, any truck during time of service without the consent of masters. All workmen, it declared, should work the whole day that is, as long as they should be ordered allowing convenient time for food and rest. Compulsory adherence to their tasks was decreed by Section III. This provided that if any servants ran away from their masters, the magistrate and two chief inhabitants were to press men and boats or pinnaces at the public charge, to pursue such persons by sea and land, and bring them back by force of arms.1 The next section placed the question of the rate of wages exclusively in the power of the masters. It decreed that the freemen of the towns should agree amongst themselves about the prices and rates of all workmens labor, and servants wages. To this decision, workman, laborer and servant were to bind themselves. Any master paying wages exceeding the prescribed rates was to be punished at the discretion of the court.2 Section V provided that wages for servants and workmen were to be paid in corn, the value of which was to be adjudged by two disinterested freemen, one to be chosen by the master, the other by the workman or servant. If they could not agree a third arbiter was to be selected by the magistrate.3
Strict as this act was, it yet was not without its gleams of prudent humanity a remnant of feudal times when the lot of the laborer had some necessary alleviating phases. Servants flying from the cruelty of the master, the act declared, could be harbored by other persons without being held accountable to the law. But the servant had to prove the fact of cruelty before the magistrate, who invariably was a landowner and employer himself.
And what if any servant should be maltreated ? This consoling redress was decreed in Section VIII : That, If any man smite out the eye or tooth of his man servant or maid servant, or otherwise maim or disfigure them (unless it be by mere casualty) he shall let them go free from his service, and shall allow such further recompense as the courts may adjudge him.4 Appearing, however, before prejudiced courts, it was anything but easy for the maltreated servant to prove that the maiming was not done by mere casualty an elastic qualification under which brutal masters took refuge.
By the next and last section of the act, faithful servants, after seven years bonded service, were not to be sent away empty. But (and this clause allowed the greatest abuses and impositions) servants unfaithful or unprofitable to masters were not to be freed until they had made satisfaction, according to the judgment of authority.5
An act adopted in Massachusetts in 1631 forbade hiring any person for less time of service than a year, unless he be a settled housekeeper.6 The act of September, 1634, prohibited the allotting of any lot of land in any plantation to any servant till he hath approved his faithfulness to his master during his time of service.7 In December, 1636, an act was passed in the same colony decreeing that no servant should be set free until he had served out the covenanted time ; the penalty for infraction was to be set by the quarter courts.8 This act also declared that no servant was eligible to any office.9 The Massachusetts act of 1642 decreed that all unruly poor children were to be bound out for service, and the act of the Massachusetts General Court, in 1720, provided that all children of the poor, whether their parents received alms or not, and whose parents were unable to maintain them, were to be set to work or bound out by the selectmen or overseers the male children until they were twenty-one, and the females until eighteen, years old.
Feudal Conditions Transplanted.
The Connecticut laws were similar to those of Massachusetts. The Rhode Island code of 1647 provided that the artificer or laborer must finish any work agreed upon and not depart unless it were that his wages had not been paid. If he quitted work he forfeited £5 to his employer, who could recover in court by an action for debt.10 In the province of New Netherlands later New York and New Jersey distinctly feudal conditions copied from those in the monarchies of Europe prevailed. Under the act of 1629, elaborated by that of 1653, of the States General of Holland, any adventurer who shipped over a certain number of adults received extensive grants of land, with feudal rights of proprietorship. These exported peasants became his vassals. The power of the Patroons as the manorial lords under Dutch control were styled over their tenants or serfs was almost unlimited. The law ordained that no man or woman, son or daughter, man servant or maid servant could leave a Patroons service during the time that they had agreed to yield service ; and no infraction of this law was permitted, no matter how gross the abuses or breaches of contract the Patroon committed.
These laws were variously ratified and increased under British rule. By an act passed in New York, October 22, 1684, against Fugitive Servants And Their Entertainers, it was provided that if any servant depart or absent himself from his masters service, he or she should be adjudged to pay the penalty of being forced to serve double their time in future service to the master.11 The bonding of impoverished boys, girls and adults in England and in America for longterm services to the American manorial lords and merchants was a fixed condition.
The grandiose feudal lord of the manor was not only the proprietor of the soil, but for a long time he was the dominant manufacturer and trader, and the mass of people were his retainers or tenants. He owned and exported the furs gathered on his extensive domain, as also the timber for which (that being entirely a sailing-ship era) there was an immense demand both in Europe and America. He, too, had control over the inland river fisheries, and all other natural resources. He had his stores, his bakery, his flour mills, saw mills and brewery. Tenants were forced by him to sign covenants that they would trade nowhere else but at his stores and mills.12
His dominion, therefore, was one of arbitrary control over his dependents and he exacted their produce at will.
The perpetuation of a completely subordinated laboring class in Pennsylvania under Quaker rule was likewise insured by strict laws. An act passed by the General Assembly in Pennsylvania, in 1700, for the better regulation of servants in this province and territories declared that for the just encouragement of servants in the discharge of their duties, and for the prevention of their deserting their masters, no servant, bound to serve time, should be sold, or disposed of, without the consent of the said servant. Violation of this law was to entail a penalty of £10, to be forfeited by the seller. Nor was any servant to be assigned by one master to another, under the same penalty.13 Every servant faithfully serving four years or more, was to have a discharge at the expiration of their servitude, and the act generously read on shall be duly clothed with two compleat suits of apparel, whereof one shall be new, and shall also be furnished with one axe, one grubbing-hoe, and one weeding-hoe, at the charge of their master or mistress.14
Quaker Methods of Disciplining the Workers.
The quitting by servants of their masters service was prohibited by Section IV of the same act, which enacted that if any servant absented himself or herself from service for one day or more without consent, he should be obliged to serve five additional days to his or her indentured term of service for each day of absence, and that after the expiration of the term of servitude the courts were to give the master damages.15 Inasmuch as few servants had any money after their long term of services, this meant that in lieu of damages they had to yield extra servitude.
The regulations for keeping servants in submission were so onerous, and their enforcement so tyrannous, that the practice of servants running away had become general. Section V made provision for this. Whoever apprehended any fugitive servant within ten miles of the masters abode and delivered the runaway to the Sheriff, was to receive a reward of ten shillings ; within twenty miles, twenty shillings, and thus on with a graduated list of rewards.16 The section following forbade the clandestine employing of other mens servants. Section VII was designed for the more effectual discouragement of servants embezzling their masters goods. Servants who were not paid, or were ill treated, frequently ran away, taking such necessary articles of apparel or other goods as they needed. The master made a charge of embezzlement. By the provision of Section VII the buyer of the goods was to pay back double value to the master, and the servant was required to make satisfaction by servitude after the expiration of his or her time, to double the value of the goods. If he were a black servant, he was to be severely whipped.17
Maryland Statutes of Bondage.
Equally strong, although in different respects, were the laws of Roman Catholic Maryland. Chapter XIX, of the Maryland law of April, 1715, prohibited, under heavy penalties, masters of ships or vessels, or any other person, from conveying away runaway servants who were under bond or bail. Any person enticing away a servant, apprentice or slave was, for each offense, to forfeit to the owner treble damages and costs for the time the servant, apprentice or slave was missing.18 The Act of May, 1748, repeated and amplified the provisions of the act of 1715 ; it decreed a penalty of one hundred pounds of tobacco for every hour of harboring fugitive slaves or servants ; the offender was to be lashed on the bare back not more than thirty-nine stripes for each offense, and servants harboring other servants were to receive the same number of lashings.
No servant, whether working for wages or indenture, should, according to the provisions of Chapter XLIV, Act of April, 1715, travel more than ten miles from the masters house without a note from the master, mistress, dame or overseer, or else be liable to penalties as a runaway.19 For being unlawfully absent from the masters service, the servant or laborer was to give ten days additional service for each days absence, and to pay costs. Anyone apprehending a runaway servant or slave was to get a reward of two hundred pounds of tobacco from the owner. No person was allowed to trade or barter with a servant under penalty of two thousand pounds of tobacco ; goods thus bartered were to be recovered, and the offender was punishable by a lashing of thirty stripes upon the bare back.20 A provision especially satisfactory to the rich planters was that all servants imported without articles of indenture were to serve these terms of servitude (service) :
Servants more than twenty-two years old to serve five years ; those between eighteen and twenty-two years old to serve six years ; those between fifteen and eighteen years old to serve seven years ; and all under fifteen years old were to serve until they were twenty-two years old.21 Inasmuch as, with the connivance of the authorities, a regular traffic was carried on by procurers in kidnaping men, women and children under various pretenses from Europe to the colonies, the significance of this statute can be seen at a glance. A white woman having a child by a negro was, if a free woman, to serve seven years in servitude ; and if she were a servant an additional seven years. Any white man doing likewise with a negress was to undergo the same penalties.22 Free persons and servants (white laborers) could not be married without the express approval of master or mistress ; the laws long kept the sharpest distinction between free whites, on the one hand, and bonded whites and whites of compulsory servitude, on the other. During the very period of the Revolution seven months after the adoption of the Declaration of Independence asserting that all men were born free and equal the General Assembly of Maryland, in February, 1777, passed an act Chapter XII of which prohibited ministers, under penalty of £50 from marrying a free person and a servant without the consent of master or mistress.23
The drafters of the Maryland act of 1715, strained themselves, we may assume, to the utmost in inserting provisions placing the following restrictions upon the masters :
If they did not feed or take sufficient care of servants by allowing needed rest, or if they taxed any servant beyond his strength, they were to pay a penalty for each offense not exceeding one thousand pounds of tobacco. For any one offense the master could give the servant ten lashes ; this was legal ; but if he gave more, he was subject to the same penalty.24
The same law provided most munificently what the servant should receive after his long period of servitude. At discharge the master was to give each servant a new hat, a good suit, a new pair of shoes, two hoes and one ax, and one gun of twenty shillings price. Failing to do this, the master was to pay a penalty of five hundred pounds of tobacco.25
Lords and Vassals in Virginia.
Extensive baronial domains and large estates in Virginia were procured by British nobles, adventurers, companies, planters and military officers with such facility that the most pressing necessity there, as elsewhere, was a permanent supply of workers to hew the forests, cultivate the arable soil, man the ships and otherwise develop and distribute the resources. The exportation from England of poor whites, convicted of one or another of the trivial offenses then punished so severely in British law, supplied a portion of this demand and kidnaping another part. The enslavement of Indians and negroes furnished the remainder.
The Virginia act of 167o declared that all servants, not Christians, imported into Virginia by shipping, should be slaves for life, but that those coming by land should serve for a limited time. This statute seems to have applied to negroes, to Indians from other provinces, and even to white convicts.26 The acts of 1672, 1679 and 1685, distinctly, as we have seen, validated the enslavement of Indian captives. The long continuing enslavement is evidenced by the fact that as late as 1793 the case (Footnote 37, Chap. I), of Coleman vs. Dick and Pat was before the Virginia Court of Appeals for the determination of the question whether Indians could be held as slaves. On that occasion the court held, as we have stated, that a statute passed in 1705 was a complete repeal of the acts of 1672, 1679 and 1685, and since that period no American Indian can be reduced to a state of slavery. But, added the court, foreign Indians coming within the description of that act, might be made slaves.27 The president of the Virginia Court of Appeals at this time was the same Edmund Pendleton who was one of the promoters of the Loyal Company which had obtained a grant of 800,000 acres of land and which had enriched itself by a succession of fraudulent operations.
The conditions under which bonded white laborers, and Indian and negro slaves toiled were not invariably hard ; here and there a humane and generous master was to be found, but he was a very rare exception. So oppressive was the lot of the servant, laborer and slave, on the whole, that at the first opportunity a desperate flight for freedom was made. To prevent this, severe laws were passed in Virginia exceeding in harshness those in other colonies.
The Virginia act of 1748 (22 George II, Cap. 17) offered rewards in specified sums to those catching fugitive seamen.28 Any person harboring a servant who lacked the necessary certificate attesting that his time of servitude had expired, was required to pay the owner thirty pounds of tobacco, with costs, for every day the runaway was sheltered.29 The same act decreed that if a runaway servant used a forged certificate he was to stand for two hours in a public pillory ; as for the forger he was to forfeit £10 with costs, failing to pay which he was to receive thirty-nine lashes on the bare back, well laid on at the common whipping post.30 If, after the arrest of runaway servants, white or negro, no owner appeared at the gaol after a stated time, an iron collar was to be put by the keeper of the gaol on the servants neck, marked with the letters P.G. at the time the servant was delivered to the person hiring him.31
Slaves Dismembered with Impunity.
Section XXXV of the same act was extremely ferocious. It decreed that in the case of any slave notoriously guilty of going abroad at night, or running away and lying out and who cannot be reclaimed from such disorderly courses by common methods of punishment (whipping and imprisonment), the court could order such a reprobate to be punished by dismembering, or any other way not touching life, as they shall think fit ; and if such slave shall die by means of such dismembering, no forfeiture or punishment shall be thereby incurred.32
The Virginia act of 1753 (22 George II, Cap. 7) altered and extended some of the previous laws. By this act, all servants (except convicts), who had been imported without articles of indenture, were to serve a period of servitude of not more than five years. Every owner was obliged to care for sick or lame servants during the whole period of service. If servants did not obey their owners just and lawful commands, and resist or offer violence to master, mistress or overseer, a year more of servitude was to be added for each offense. In cases of violations of penal laws in which free persons were punishable by fine, servants were to be punished by whipping, after the rate of twenty lashes for every five hundred pounds of tobacco or fifty shillings current money. But no servant was to get more than forty lashes at one time.33
After having served their years of laborious servitude, the servants, men and women, were cold-bloodedly turned out in an impoverished condition, with nothing more than a few articles allowed by law, and perhaps a few bits of money ; but money was scarce, tobacco largely being used in Maryland and Virginia as currency. Frequently during their terms of service, servants were forced to undergo a change of masters, at least in Virginia ; when planters fell in debt it was common for them to sell their land and servants.34 The most vigorous part of the laborers life was given in compulsory service to the master ; and usually after the expiration of his term of servitude, his vitality was impaired, and he had no means of securing subsistence. In custom and law he occupied a degraded position, from which in the South, at least, is derived the old contemptuous sneer at white trash. The best and most valuable lands in the accessible portion of the country had already been preŽmpted by adventurous individuals, manorial lords or planters who had acquired them by the means described in the foregoing chapter. The poor white owned nothing to speak of, and was virtually allowed to own nothing ; his situation was a dire one.
Houses of Correction and Workhouses.
The inevitable consequence was a quick and direct creation of a destitute class. Many, incapable of working longer, or filled with great repulsion because of their hard labor under servitude, wandered pathetically about and became what were called vagabonds ; others took to theft or drink ; still others to begging ; and the prostitution of women was early in evidence. How did the lawmakers meet these conditions ?
They began to establish houses of correction and workhouses. By the Massachusetts act of 1646, houses of correction were ordered, and magistrates were required to commit to those institutions runaway servants, idle persons, common drunkards and common night walkers, and to provide materials of work.35 The act of 1699 of the same colony made more effective provision for houses of correction and workhouses, and the putting to work in those institutions of rogues, vagabonds, common beggars and other lewd, idle and disorderly persons. For such as were stubborn and declined to work, ten lashes or a starvation diet were prescribed.36
The Massachusetts act of 1720, as we have seen, compelled the setting to work, or the bonding out, of all children of the poor. The New Hampshire act of 13 Anne decreed that any Indian, negro or mulatto servant found abroad, without satisfactory excuse, after nine oclock at night was to be locked up in the house of correction, and returned to the master next morning. If the arrest happened to be in a place where there was no house of correction, then a lashing of ten stripes was to be given by the constable in place of imprisonment.37 The Connecticut laws approximated those of Massachusetts and New Hampshire. The Rhode Island code of 1647 ordered each town to provide for the relief of the poor, maintain the impotent, and employ the able under an overseer.38 But an order followed three years later in 1650 requiring that any man not having more than £5 could be adjudged a pauper, and treated legally as a pauper.39
The acts of Pennsylvania of May 31, 1718, August 19, 1749, and those of other years dealt with the establishment of measures for the relief of the poor. Beginning with a preamble that the poor within the city of Philadelphia and adjacent parts are becoming very burthensome and expensive to the inhabitants, the Pennsylvania act of February 8, 1766, incorporated a society to be called, Contributors to the Relief and Employment of the Poor in the City of Philadelphia.40 The same act tells that whereas great numbers of rogues, vagabonds and other idle and dissolute persons frequently come from the neighboring provinces to the said city, without following any labor, trade or business, or having any visible means of subsistence, and are not only dangerous members of society, but in the end become burthensome to the Publick therefore, they are to be committed to the House of Employment to be kept at hard labor for three months.41
Early in the settlement of New York, the idle and beggars became so numerous, that acts were passed on November 1, 1683, and on May 13, 1691, providing poorhouses for the maintenance of the poor and for the preventing of vagabonds, beggars, idle persons, and those without manual crafts; these laws made a special provision for beggars, requiring their deportation to towns from which they came.42
Badges of Degradation for the Poor.
But of all the colonies, the poor laws of Virginia, as in the case of servants and slaves, were the harshest. The poor were forced to wear the most humiliating and visible tokens of their degrading poverty. The act of 1748 (22 George II, Cap. I, sect. 5) turned the poor over to the supervisor of the church parishes which were required to build houses for their lodging and employment. The parishes were to provide cotton, hemp, flax and other materials for the setting of the poor at work. If inmates did not behave according to the rules, or were refractory, corporal punishment was to be administered, not exceeding ten lashes at a time for each offense. The vestries were allowed to dispose of the profits of the poors work, and were to be held accountable.
By this law every such poor person was compelled in an open and visible manner to wear on the right sleeve of his or her upper garment a badge with the name of the parish (to which he or she belonged) cut in blue, red or green cloth. If the poor under supervision neglected or refused to obey, the church warden could punish by abridging the allowance of the offender to the slimmest possible diet, and apply not more than five lashes at one time for each offense. This act was to be enforced in all of the courts.43
Violations of laws prohibiting the acquiring or conveying of land by fraud entailed, as we have seen, only a nominal money penalty. Not often, of course, were these laws enforced ; the officials who made, interpreted and enforced them were mainly themselves involved in the grossest land frauds, or their influential friends were. Before the Revolution, judges in some of the colonies received no fee or reward ; they were composed exclusively of manorial lords and other men of fortune and estates. When destitute workers resorted to theft they were punished under a code of the most barbaric laws designed to protect the property of the possessing class.
Barbaric Punishment for Offenses.
For burglary or robbing from any house or from any person on the highways, the Massachusetts act of 1642 imposed these penalties :
For the first offense the letter B was to be branded on the offenders forehead ; he was to be again branded and severely whipped for the second offense ; and for the third he was to be put to death. If the crime were committed on the Sabbath he was, in addition to branding, to suffer one ear to be cut off for the first offense ; the second offense was to entail the cutting off of the other ear ; and death was to be the penalty for the third offense.44 The act of 1692 provided branding for the first offense ; for the second, the culprit was to be set upon the gallows, neck in rope for an hour, and thirty-nine lashes were to be given. The third offense brought death.45 Theft increased in Massachusetts, and the act of 1715, entailing the death penalty, was intended to decrease crime.46 But it had no such effect. In 177o an act was passed imposing death without benefit of clergy for entering a dwelling house at night with intent to steal.47 The Rhode Island code of 1647 decreed death for burglary committed by all more than fourteen years of age. But the qualification was added that this clause did not extend to poor persons that steale for Hunger, nor to fooles, nor to madd men. In the cases of such persons as, also, in the cases of those under fourteen years old, the crime was held to be larceny.48
What was the punishment for larceny ? For the petty larceny of goods not exceeding twelve pence, the offender was to be well whipt for the first offense ; for the second he was to serve two months in the House of Correction and be twice whipped.
Grand larceny included the theft of anything more than twelve pence in value. The first offense brought a severe term in the house of correction. The second resulted in branding in the hand, and a sentence of imprisonment until the convicted person paid twice the amount to the party wronged, and four times the sum to the Colony 49 which, assuredly, he never could.
The Quaker punishment for larceny in Pennsylvania was very much the same as that of the New England Puritans. Section XXIX of the Pennsylvania act of 1718, for the advancement of justice, enacted that for larceny, first offense, the offender must restore goods or chattels, pay the costs of the prosecution, go to jail, and be publicly whipped on the bare back with stripes well laid on, not exceeding twenty-one. The second offense brought the same penalties, with a public whipping of from twenty-five to forty stripes.50
Imprisonment of Debtors.
Such are some examples of the laws in the various colonies. But other laws in force bore heavily on the wage working laborer. In all the colonies laws were passed and enforced for the imprisonment of debtors. These laws were not in so many words specifically directed at the poor, but it was exclusively upon the laborers that their application fell. Falling in debt because of misfortune, or because of the extortions of landlord and tradesman,51 the worker was summarily despatched to jail, and remained there under rigorous and wretched circumstances, unless he chose to avail himself of the alternative the law presented. This alternative was that the imprisoned worker could make satisfaction for his debts by pledging himself in servitude to his creditors.
That those having property not only escaped the enforcement of these laws, but tried to pervert them fraudulently to their own purposes is clearly shown, for example, in a Pennsylvania act, passed in the year 173o. Reciting that the prior law contained no provision compelling the debtor to render any account of his or her estate, the act went on to say that great abuses had been committed by persons claiming the benefit of the law, in concealing their estates and making them over in trust 52 thus revealing that Quaker professions of brotherly love went sadly astray when in conflict with economic interest. This act declared that debtors should render accounts ; and, among other provisions, it gave landlords the right to recover up to one years rent, by seizure of imprisoned debtors goods and chattels. The jailor, also, was to rank as a creditor for his fees, but jailors, bailiffs and others guilty of extortion were to be punished.53
But the abuses heaped upon the workers continued, as is evident from the preamble of a Pennsylvania act adopted in the year 1745. This act, for the easy and speedy recovery of small debts began by saying that it is found by experience that a great number of the lawsuits which are commenced in this province, are brought against the poorer sort of people for small sums of money, who are unable to bear the expenses arising by the common method of prosecution. Although reducing the costs of actions two-thirds, this law really made it easier for landlords and traders to collect from small debtors ; if the debts were not paid, the law decreed imprisonment.54
The Existing Contrasts.
In all the colonies, but more markedly so in the South, there were thus, broadly speaking, two classes, each the extreme and the antithesis of the other.
The various strata of the workers, as defined by law and usage, comprised one class. Hemmed in by harsh statutes, and oppressed by the power of a class invested with the full force of law and wealth, and construing those laws to their uttermost limits, the workers found themselves in a situation from which it seemed impossible to extricate themselves. In dress and living, as in other ways, the most obviously striking distinction was compelled between worker and master.
Attired in clothes of the coarsest materials, betokening plainly his occupation, lowliness and menial condition, the worker moved about in an environment surcharged with the suspicion and undisguised scorn of those who owned his labor, and often his life. Such little consideration as was afforded by law to prevent too brutal treatment of him was not because he was esteemed human. It arose, not always, but on the whole, from the aim of the more far-seeing of the master class to preserve his efficiency at the highest level possible.
Resplendent in gold and silver lace and buttons, delicate laces and fine apparel, his sword pendant on his embroidered belt always conspicuous, the master was a very different appearing person from the bent, clodded worker whom he looked down upon and treated with a haughty distrust and arrogance that awoke the bitterest but inarticulate resentment. The rude little tenant cottages or huts in which the slave, servant or laborer existed, grouped, as those mean habitations often were, about the manorial or plantation mansion, formed the sharpest contrast with the elegant style in which the master luxuriated. This environment in Virginia is described by Jefferson in his Memoirs :
At the time of the first settlement of the English in Virginia, when land was had for little or nothing, some provident persons having obtained large grants of it, and being desirous of maintaining the splendor of their families, entailed their property upon their descendants. The transmission of these estates from generation to generation, to men who bore the same name, had the effect of raising up a distinct class of families, who, possessing by law the privilege of perpetuating their wealth, formed by these means a sort of patrician order, distinguished by the grandeur and luxury of their establishments. From this order it was that the king usually chose his counsellor of state.
It was then, much more than now, the fashionable mark of a gentleman not to degrade himself by labor of any kind ; and the leisure of his rank in the South was considered to be well and truly signified by spending his time in hunting, athletic sports, carousing, dissipating, gambling,55 and in social festivities or, in the case of many of the gentlemen past youth by making a foible of reading, music and study and a science of debauchery. Some few there were who applied themselves seriously to such mental development as their environment and interests allowed ; and these became the most astute representatives of their class.
In New England, it was the fashionable part of a gentleman to affect church patronization, which religious ardor, however, did not prevent his gratifying his appetite for some very unorthodox practices. The barriers separating classes and grades of classes in New York and New England almost approached the rigid precision in the South. At the base were the slaves, during the period in which Indian or negro slavery was in existence there. Then came the indentured servants ; then the free laborers ; after them the mechanics ; then the yeomen or small farmers, above whom were the small merchants or traders. The next stratum was the professional class. Above these towered the gentlemen merchants or shippers, comprising those of wealth and large commercial operations. At the apex stood the lords of great estates, or royal officials, both often in one category.
Between these classes or orders as they were termed sharp lines of recognized caste were drawn. Whether at pious ceremonies in church or at public meetings, people were ranged in order of precedence according to their station. Up to the time of the Revolution students in Harvard College, according to Thwaites, were catalogued and regarded purely in the order of their social rank ; and even after the actual custom was dropped the spirit long persisted. Each order was expected to look up to that above it, and all of the lower orders were called upon to yield the most reverential respect and obedience to the upper class.
The fashions, views and prejudices of the master class were absorbed, and in application even exceeded, by the professional men of whom the rich were clients. Some of the lawyers themselves sprang from the ruling class. With but the fewest and most creditable exceptions, all others of that profession sought to ingratiate themselves into the favor of the rich by flattering, pleasing and serving them with an excess of zeal in stamping down the worker still further by statutes ingeniously borrowed from mediæval law, or by harrowing the worker in the courts with lawsuits in which these attorneys by every subtle argument appealed to the prejudices of the judge, already antagonistic to the worker and prejudiced against him. Even if the judge, perchance, were impartially and leniently disposed, the laws, as they were, left him no choice. Reading the suits and speeches of the times, one sees clearly that the lawyers of the masters outdid even their clients in asserting the masters lordly, paramount rights and powers, and in denying that any rights attached to the under class. This lickspittle subservience to their clients was subsequently, as we shall have abundant occasion to observe, transferred to the bench of the Supreme Court of the United States with the most far-reaching results.
Development of Native Manufacturing.
While the landlords and traders were thus enacting law after law causing or affirming the servitude and practical villenage of the working people of every kind, they were themselves making profits in the exercise of the most fraudulent operations in trade. The very debts for which the worker was imprisoned were often claimed for bills for adulterated or otherwise spurious merchandise.
Landlord and trader were often the one and the same person ; not so much the petty landlord, who owned a lot or two in the cities, but the lords of the great plantations and manorial estates.56 They, or their agents, traded with the Indians for furs, which were exported to Europe ; they sold and exported the timber and lumber from their domains ; from the estates along the seashore and rivers were exported great quantities of fish, especially to Roman Catholic countries ; they had their grist mills, breweries and other industries. And out of the planter class developed a manufacturing class not manufacturing in the modern factory sense, but an industry in which commodities were made by hand by bonded servants, slaves and wage workers. A broadside published at the time 57 said that the wars in Europe had hurt the tobacco trade so much and had so reduced the planters that for several years past the whole product of their tobacco would hardly clothe the servants that made it. Some of the Planters, the broadside went on, in hopes of better Success, have continued planting, till they have run themselves so far in debt, that they have been forced to sell part of their Land and Servants, to secure the rest. Others, out of mere Necessity, have fallen into the manufacturing of Woolen, Cotton, Flax. Leather, and various other enumerated classes of goods, which, said the broadside, they had brought to great perfection. Here we see the beginning of that manufacturing which later was to be so important a factor.
Debauching of Indians and Other Traders Frauds.
So firmly established and so widespread early in the seventeenth century was the practice on the part of white traders of debauching and cheating the Indians, that in the Certain Conditions or Concessions, agreed upon by William Penn in connection with his charter, in July, 1681, before he left England, this provision was inserted :
Twelfthly. And forasmuch as it is usual with the planters to over-reach the poor natives of the country in trade, by goods not being good of the kind, or debased with mixtures, upon which they are sensibly aggrieved, it is agreed, whatever is sold to the Indians, in consideration of their furs, shall be sold in the market place, and there suffer the test, whether good or bad ; if good, to pass ; if not good, not to be sold for good, that the natives may not be abused nor provoked.58
However sincere Penn may have been in seeking to prevent in Pennsylvania the debauching and swindling of Indians going on shamelessly in other colonies, the agreement was of absolutely no effect. Quaker traders, not less than Puritan and Southern traders elsewhere, profited from the practice, and pushed it to such an extent that on May 22, 1722, a law was enacted in Pennsylvania prohibiting the selling of rum and other strong liquors to the Indians and to prevent abuses that may happen thereby.59 Later acts for the prevention of these widespread abuses were passed on April 8, 1758, April 17, 1759, and April 2, 1763.60
The very liquor sold to the Indians and whites was adulterated. To prevent fraud in mixing and adulterating rum, brandy, or such like spirits, a law was enacted in Pennsylvania in the year 1705.61 An act passed in 1722 prohibited the use of unwholesome materials in making beer ;62 and these acts were reenforced by another act passed in 1723. Such fraudulent practices extended to other lines of trade in Pennsylvania ; a fact that is of no little significance, seeing that that colony, later State became one of the foremost in manufacturing in the United States.
An act, passed in 1759, was designed to prevent the exportation of bad or unmerchantable staves, beading boards and timber; many abuses and frauds, the act said, went on in the exportation of stuffs to the foreign markets.63 The decline in the export trade of shad and herring led to the passage of an act, in 1774, to prevent frauds in the packing and preserving of those goods for exportation.64 The export of fish from the New England fisheries comparatively large at the time, gradually fell off for the same reason, as official reports later showed.
Large fortunes were accumulated by ship owners from the export of fish, timber, tobacco, furs, corn, rice, manufactured products and other commodities and in the return importation of negro slaves and merchandise. These fortunes, and the men who acquired or inherited them, had the greatest influence in determining both the declaration and the course of the Revolution, the fashioning of the Constitution of the United States, the drafting of the State Constitutions, and the laws of Congress ; and some of them, as we shall see later, had their direct influence and their representatives upon the bench of the Supreme Court of the United States. These wealthy shippers had a positive and keen personal interest in seeking to continue the actual substance even if the form of government were changed of the conditions from which they profited. But it was the conditions as a whole so conducive to the benefit of the predominating landed interests, with the allied but subordinate trading class, that prepared the way for later events to be now described.
1 Ancient Charters and Laws of Massachusetts Bay, etc., Published By Order Of The General Court, 1814: p. 155. The word servant as used throughout the colonies in the seventeenth and eighteenth centuries is by no means to be understood as being confined to the narrower conception of the domestic servant of to-day. A servant then was not only one who gave personal household service, but was bonded to perform many agricultural and other occupations for manorial lords, merchants, shippers and plantation owners.
2 Ibid., 156.
6 Ibid., Appendix, p. 711.
8 Ibid., 429.
10 Rhode Island Colonial Records, 1636-1663, Vol. I : 183-184
11 Laws of The Colony of New York : 147.
12 For a fuller description see The History of the Great American Fortunes, Vol. I., Chaps. 1, 2 and 3.
13 Carey and Biorens Pennsylvania Laws, 1700-1770, Vol. I : 14-16.
15 Ibid. The word servitude is the exact word used in the colonial laws.
18 Laws of Maryland, etc. (Edition of 1799), Vol. I. This volume is not paged.
24 Laws of Maryland, etc. (Edit. of 1799), Vol. I.
26 We have seen how the Virginia general land laws of 1705 allowed planters to acquire free lands in proportion to the number of servants or slaves owned. The more slaves or servants, the greater the area of land granted.
27 Washingtons Virginia Reports (Court of Appeals), Vol. I: 239.
28 Virginia Laws (Edition of 1759), p. 314.
30 Virginia Laws (Edition of 1759), p. 314.
31 Ibid., 316. The meaning of the letters P.G. is not stated in the statute.
32 Ibid., 319.
33 Ibid., pp. 326-329.
34 So stated in a broadside published at the time.
35 Ancient Charters and Laws of Massachusetts Bay, etc., 178.
36 Ibid., 334-338.
37 New Hampshire Acts And Laws (Fowlers Edition of 1761), p. 41.
38 Rhode Island Colonial Records, 1636-1663, Vol. I : 184-185.
39 Ibid., 227.
40 Carey and Biorens Pa. Laws, 1700-1770, Vol. I : 417-419.
41 Ibid., 423-424, The succeeding law of March 9, 1771, said that the laws theretofore enacted had not answered the good purposes expected,Ibid., Vol. II: I.
42 Laws of The Colony of New York, pp. 131 and 237. The presence of beggars entailed expense and annoyance ; accordingly each town sought to rid itself of them by driving them from its limits.
43 Virginia Laws (Edition of 1759), pp. 282-286.
44 Ancient Charters and Laws of Massachusetts Bay, etc., p. 56.
45 Ibid., 239.
46 Ibid., 407.
47 Ibid., 669.
48 Rhode Island Colonial Records, 1636-1663, Vol. I : 167. This act was an explicit admission that many of the poor were compelled to steal, driven to it by hunger. Begging and other such crimes were generally prompted by the same incentive of self-preservation.
49 Rhode Island Colonial Records, 1636-1663, Vol. I : 174.
50 Carey and Biorens Pa. Laws, 1700-1770, Vol. I: 143.
51 As has been noted, the tenants of the manorial lords and masters were covenanted to trade and buy exclusively at his stores. The owner was able to exact such prices as he pleased, with the result that tenants invariably were in debt. When it suited the particular interest or other motive of the owner to put the tenant in jail, he did so. See also Chapter III of this work showing the enormous prices exacted by merchants.
52 Ibid., 232-247.
54 Ibid., 278.
55 A gentleman in the South lost caste if he did not gamble profusely and for high stakes. In Virginia and Maryland the stakes were usually tobacco. Thus, for example, one Beverly, during minorship, lost 25,000 Pounds of tobacco to one Smith, and Smith sued to recover. See case on appeal of Buckner and other trustees of Beverly vs. Smith et al. Washingtons Virginia Reports, Vol. I: 296.
56 They were then called plantations in New England, as well as in the South.
57 The Present State of the Tobacco Plantations In America. The exact date of this broadside is uncertain.
58 Carey and Biorens Pa. Laws, Vol. VI, Appendix, p. 1o.
59 Ibid., Vol. I : 87.
60 Ibid., p. 343, etc.
61 Ibid., 60. Evidently the Quaker lawmakers were much concerned for themselves in demanding strong drink ; there was much mixing of water with rum, brandy, etc., the act complained.
62 Ibid., 166.
63 Ibid., 347-352.
64 Ibid., Vol. II: 122.