Here it is important to consider, that, besides apprentices, there
was a class of “indented servants” embraced by this clause. From
Bancroft we learn that this species of servitude, under indentures
or covenants, had from the first existed in Virginia. According to
the historian, “the servant stood to his master in the relation of a
_debtor_,” which, be it observed, is not the condition of a slave. From
the same authority we learn that “the supply of white servants became
a regular business,”--that, “like negroes, they were to be purchased
on shipboard, as men buy horses at a fair,”--that “in 1672 the average
price in the Colonies, where five years of service were due, was about
ten pounds, while a negro was worth twenty or twenty-five pounds.”[326]
The Scots captured on the field of Dunbar, royalist prisoners of the
Battle of Worcester, and companions of Monmouth in his ill-starred
insurrection were sent to the Colonies as a merchantable commodity, and
there held in slavery for life or for years.
The other historian of our country, Hildreth, contributes to
our knowledge of this class of servants. According to him, the
importation of indented white persons, called “servants,” or sometimes
“redemptioners,” in contradistinction to negroes, known as slaves,
was extensively carried on as late as 1750, especially in the Middle
States; and he mentions, that the Colonial enactments for keeping
them in order, and especially for preventing their escape, were often
very harsh and severe. They were put, for the most part, on a level
with slaves, but their case in other respects was different. Except
in very young persons, the term of service seldom or never exceeded
seven years, and in all cases it was limited by law.[327] Even during
the Revolution these indented servants appear on the stage. Many
were enlisted in the army, and, yielding to the earnest request of
Washington, Congress relinquished a plan already adopted of stopping a
portion of their pay for the benefit of their masters.[328]
An English Colonial official, Eddis, in a letter from America, dated
September 20, 1770, describes four different denominations of persons
“in a state of servitude”: first, the “negroes,” who are the entire
property of their respective owners; secondly, “convicts,” transported
from the mother country for a limited term; “indented servants,”
engaged for five years previous to leaving England; and “free-willers,”
supposed from their situation to possess superior advantages. These
he proceeds to describe. Of the last class he says, they are received
under express condition, that, on arrival in America, they are to
be allowed a number of days to dispose of themselves most to their
advantage, but, in fact, they are rarely permitted to set foot on shore
until they have bound themselves.[329]
If, happily, at the formation of the Constitution, these servants had
diminished in number, or had ceased to exist as a class, the condition
was not unknown. They were persons “held to service or labor,” and the
provision of the Constitution was strictly applicable to them.
Rejecting the odious application involving the support of Slavery,
we follow received rules and the undoubted genius of the Common Law.
How anxiously judges seek to evade an obnoxious penal statute is
illustrated by a curious case mentioned by Lord Campbell. It was proved
that the defendant, being in a stubble-field with a pointer, fired his
gun at a covey of partridges, and shot two, when the judge, disliking
to enforce the Game Laws, objected that there was no evidence that
the gun was loaded with shot, and advised the jury to conclude that
the birds fell dead from fright.[330] But a clause for the rendition
of fugitive slaves is entitled to as little respect as the Game Laws,
and, when the words employed are applicable to others than slaves, they
should not be applied to slaves.