Linda Grant DePauw
The Revolution and the Unfree: Blacks, Women, Indentured Servants, Minors, and the Unpropertied

The fortune that Thomas Jefferson pledged with his life and sacred honor in support of the declaration that all men are created equal and endowed with inalienable rights to life, liberty, and the pursuit of happiness, included, in the summer of 1776, almost two hundred slaves. The incongruity of a slave owning people basing their Revolution on such exalted doctrines did not escape remark by contemporaries any more than it has escaped notice by historians. "How is it,” sneered Samuel Johnson, “that we hear the loudest yelps for liberty among the drivers of negroes?” The Loyalist Thomas Hutchinson dryly observed that there seemed to be some discrepancy between the declaration that all men were equal and a practice that deprived “more than a hundred thousand Africans of their rights to liberty."

Even those Englishmen who sympathized with the American cause were repelled by the paradox. "If there be an object truly ridiculous in nature," Thomas Day commented, 'it is an American Patriot signing resolutions of independence with the one hand, and with the other brandishing a whip over his affrighted slaves." And the patriots themselves were not insensitive to it. "I have sometimes been ready to think," Abigail Adams wrote to her husband, 'that the passion for liberty cannot be equally strong in the breasts of those who have been accustomed to deprive their fellow creatures of theirs.” Patrick Henry confessed amazement that men as sincerely “fond of liberty" and genuinely religious as himself tolerated slavery. “Would anyone believe," he asked, "I am the master of slaves of my own purchase!”

Historians writing about the age of the American Revolution have tended to ignore the paradox more frequently than they have attempted to resolve it, but in recent years serious attention has been given to the enslaved blacks, and such New Left historians as Jesse Lemisch and Staughton Lynd have pointed out the limitations on the rights of such groups as merchant seamen and urban workers. Yet the full magnitude of the paradox is still unmeasured, for it appears that the contradiction between Lockean ideals and social practice in the year 1776 was not only more pronounced than contemporaries and traditional historians described but even exceeds the dimensions suggested by recent historians of the New Left. Had Lockean dicta been applied to all the human beings in British North America on the eve of the Revolution, and had all been permitted to enjoy the natural and legal rights of freemen, it would have been necessary to alter the status of more than 85 per cent of the population. In law and in fact no more than 15 per cent of the Revolutionary generation was free to enjoy life, liberty, and the pursuit of happiness unhampered by any restraints except those to which they had given their consent.

The unfree of Revolutionary America may be conveniently considered in five categories: Negroes, white servants, women, minors, and propertyless adult white males. These categories overlap and the proportion of the total population falling into each of the categories differed from one part of the country to another. Thus there were proportionately more women in New England than in backcountry North Carolina, many more blacks, proportionally, in Virginia than in New Jersey, and a larger proportion of disfranchised adult white males in South Carolina than in Massachusetts.

It is also true that legal limitations on liberty do not necessarily coincide either with a psychological sense of freedom or with social practices. The unfree were rarely, in fact, exploited to the full limit allowed by law. Nor has there been any attempt in this brief essay to present a precise description of legal status based on the myriad of local traditions, statutes, and common law interpretation. The following summaries claim to be correct in outline, not to have exhausted the complexities of the subject which are vast and largely unstudied. It is clear, however, that for each of the unfree groups the law placed definite theoretical limits on the rights Locke viewed as inalienable.

The black slaves, the most visible of the colonial unfree, comprised approximately 20 per cent of the colonial population, a proportion twice as great as that formed by the black population of the United States today. These slaves were legally chattel property. The law saw no self-evident right to liberty attached to the person of the dark-skinned laborer from Africa, and, indeed, the law had little concern for his right to life. The deliberate murder of a slave was not necessarily a felony in Virginia before the Revolution, for the law assumed that no one would intentionally destroy his own estate. Slaves had no right to hold property of their own and enjoyed the use of no more than the master allowed. As for the third right in Jefferson's trinity, pursuing happiness, if that took the form of taking time off from the master's work, it was a punishable offense.

There were a small number of free blacks in Revolutionary America, most of them in the North. Their status was superior to that of the slave, but they were still limited politically, socially, and economically in all of the colonies. For most legal purposes there was no distinction made between free and enslaved Negroes. They might have some time they could call their own for pursuing happiness, but they were forbidden to pursue it in a tavern. In Rhode Island a free black man could not even purchase a quart of cider.

White servants in colonial America comprised a class perhaps half as large as the slave force but unbalanced in age and sex distribution in favor of young adult males. Their status was superior to that of Negroes but still substantially below that of freemen. In many ways the servant was merely a slave with prospects of eventual freedom and whose entry into his lowly station had been more or less voluntary. When, in November 1775, Lord Dunmore attempted to lure blacks into the British army by offering them freedom as a bounty, the same offer was extended to white servants.

The servant's labor belonged to his master twenty-four hours a day, seven days a week. Like the black slave, he was a chattel. He had no property himself but what his master allowed. He could not marry without his master's permission and, like a black man, he could not drink liquor in a tavern. Running away and disobedience were severely punished, and stories of inhuman cruelty to white servants are common. Like a slave, a white servant could be sold against his will away from his wife and family or seized to satisfy his master's debts. There seems little to recommend the legislation governing servants over that governing blacks--with one exception. White servants, unlike slaves, had personal rights to life and contract rights to a minimum standard of living. They could bring suit to enforce these rights and the courts would enforce them even to the extent of freeing the servant outright.

The legal status of colonial women was determined by the tradition of the British common law with certain modifications forced by pioneer American conditions, most of which were made before the end of the seventeenth century. Blackstone's Commentaries, which began to circulate as an admired authority among colonial lawyers in the decade before the Revolution, described a theoretical position for English females that varied substantially from that held by free English men. Under common law, Blackstone taught, a woman ceased to exist if she married, for she and her spouse became one flesh and the flesh was his. She was no longer responsible for her debts or even for all of her personal actions. She had no legal control over any property either inherited or earned. And if her husband judged her disobedient or saucy he could chastise her as he did his children and servants. This was considered proper as he might be held responsible for her misbehavior in cases short of murder and high treason. Although divorce laws were relatively liberal for a time in the seventeenth century, a reaction in the Revolutionary era made divorce, regardless of cause, practically impossible for a woman to obtain.

The status of unmarried women, both widows and spinsters, was considerably better. By a law of 1419 known as “couverte de Baron" an unattached woman, the "Feme Sole," was entitled to engage in business enterprises on her own account. A widow was entitled to one-third of the family estate and might be willed even more. So long as she did not remarry she could invest or dispose of this property as she wished. There was, however, great social pressure on women to marry. Although women made up almost half of the total population when all age groups are included, the sex ratio of men to women in the marriageable age group (i.e., between sixteen and sixty) was extremely high--160.8 men to every 100 women. Consequently spinsters were few and they were generally propertyless dependents in the home of a male relative. Widows commonly remarried before their husbands had been buried a year-unless they were remarkably unattractive, elderly, or poor. Those in the last category, who could not support themselves on one-third of their deceased husband's estate, would be subject to the poor laws unless a male relative could be found to take them in. The poor law prescribed compulsory labor for the poor so that impoverished widows might be bound out to serve as domestics. In Wareham, Massachusetts (admittedly an exceptional case) there was an annual auction of indigent widows.

Americans under the age of twenty-one, a clear majority of the population in 1776, were legal infants, and the right to liberty of such persons was far from self-evident to the founding fathers, although they were aware that it seemed to follow, at least for older children, from the Lockean premises. It would be a mistake to confuse the class of legal minors in Revolutionary America with modem adolescents. Blackstone declared a boy of twelve fit to take an oath of allegiance and a girl of seven ready to be given in marriage. The age of discretion for most purposes fell between seven and fourteen and all children above this age group were subject to capital punishment for felonies and bore most of the responsibilities if not the privileges of adults. Children entered the labor force well before they entered their teens, and they developed a degree of maturity and experience in the world that would be considered unhealthily precocious today. The large number of men in their early twenties who served competently as field officers in the Revolutionary armies and sat in the Continental Congresses could only have appeared in a society that considered teenage boys adults even though it deprived them of full legal rights. Male children of the age of sixteen were taxable and liable for militia duty. And since the population of colonial America was generally young, sixteen being the median age, unfree males between sixteen and twenty-one comprised one quarter of the total taxable male population. In an age when the mortality rates among infants and children were high and when a youth of sixteen had less than an even chance of surviving to the age of thirty, the loss of even a few years of liberty was a significant grievance.

Furthermore, theories of child nurture in colonial days were distinctly grim, based on the still formidable patriarchical traditions that had prescribed death for a “rebellious and incorrigible son." Obedience to parents was a duty imposed by divine as well as human law to be enforced by corporal punishment if necessary. Minors were expected to work for their parents as soon as they could walk, but they had no personal property rights before they came of legal age. Authority over children above ten or fourteen was frequently transferred from the natural parents to a master. The institution of apprenticeship was still viable at the time of the Revolution and was the usual path for a young man who did not intend to become a farmer but wished to learn a trade. Girls might also become apprenticed. Apprenticeship articles were drawn to standards set by colonial legislatures and generally required the consent of the child as well as of his parents. But children of poor or otherwise incompetent parents might be sold against their will to masters who promised, sometimes deceitfully, to provide for them adequately and teach them a trade before they came of age.

Once apprenticed, a child’s labor belonged to the master as fully as did that of any servant. Even visits to his own parents could be forbidden and the free-time conduct of apprentices was subject to the same sort of restrictions that applied to adult servants or slaves. Disobedience to a master as to a father could be punished with the whip. If a child came to detest the trade his father apprenticed him to, or if the master failed to make him proficient in the craft, his entire future would be warped, for once of age and free it would be too late to begin again to acquire the skills needed to make a living.

These four groups--Negroes, servants, women, and minors--together comprised approximately 80 per cent of the two and a half million Americans in the year 1776. The legal doctrine applied to these classes excluded them from the category of persons who should enjoy the "inalienable rights" of which the Declaration speaks. But perhaps the most significant mark of their unfreedom was their usual lack of a right to vote, for the privilege of consenting to the laws was the essential right of a free man in Lockean theory. Indeed, the very word “enfranchise” was defined in the eighteenth century as the equivalent of the word "emancipate;” it meant 'to make free."

Interestingly enough, the prohibition on the suffrage does not appear to have been absolute either in law or in fact for any of the unfree groups. Colonial suffrage legislation tended to be vague. Only Virginia, South Carolina, and Georgia specifically confined the franchise to white voters and there are recorded cases of Negroes, mulattoes, and Indiana actually casting ballots. When in 1778 a provision excluding blacks from the suffrage was inserted in the proposed Massachusetts constitution, a citizen observed in the Independent Chronicle that '” black, tawny or reddish skin is not so unfavorable in hue to the genuine son of liberty, as a Tory complexion." Rare instances of bond servants casting votes are known and enough servants presumed to exercise the franchise in Albany, New York to necessitate their specific exclusion from participation in city elections in 1773.

Only Pennsylvania, Delaware, South Carolina, and Georgia specifically disfranchised females who otherwise qualified as property holders. When Hannah Lee Corbin protested to her brother Richard Henry Lee in 1778 that Virginia women ought not to be taxed if they had not the right to vote, he replied that 'women were already possessed of that right," and, apparently, some women did vote for a time in Virginia as well as in New England and the middle colonies. But these cases were rare and it is significant that Mrs. Corbin did not know she had the franchise until her brother so informed her.

Only six states explicitly stated that voters must be twenty-one years of age (Pennsylvania, South Carolina, Virginia, Connecticut, New York, and North Carolina), and there are recorded cases of young men under legal age occasionally registering their votes.

In all likelihood, however, the liberality of colonial suffrage legislation was due to careless draftsmanship rather than to any desire to permit members of the unfree classes to vote. The intention was to limit the franchise to free, adult, white males and others who voted slipped through by accident as a result of laxity among election inspectors. Indeed, we know of such cases chiefly because they served as grounds for complaint in disputed elections.

A fifth group of colonial Americans, adult white males with little or no property, was deprived of the vote in colonial elections and so fell short of full liberty in the Lockean sense. But they were privileged above  other unfree groups since they were legally entitled to acquire property and were protected from physical abuse except such as was administered by public authority after trial as punishment for offenses against the state. Some of these disfranchised males were idiots, invalids, or residents of workhouses. Others were simply too poor to qualify under the arbitrary property requirements of the various electoral laws. Statistically they are the least significant of the unfree, although they have had more than their share of attention from critics of consensus history. They made up between 5 and 10 per cent of the total population. If they are added to the 80 per cent of the population in the other unfree categories, which were limited not merely in their political rights but in their rights to personal liberty and property as well, then only 10 to 15 per cent of the American population remain to qualify as “freemen” in the fullest sense.

It is curious that this startling statistic has somehow escaped comment by historians. While the enslavement of Negroes and disfranchisement of some adult white males may be noted in passing as undemocratic elements in pre-Revolutionary America, the disfranchisement and worse of the other unfree classes is accepted without remark even in our enlightened age. Thus, Elisha P. Douglass defines democracy in his Rebels and Democrats as "a political system in which all adult males enjoyed equal political rights.” Robert Brown writes in Middle-Class Democracy and the Revolution in Massachusetts, "The only valid approach . . . is to find out how many adult men could vote out of the total adult male population…”  “The important ratio is that of qualified voters to adult white males.”

Today almost 65 per cent of the total population is enfranchised and in law, at least, virtually all of the people are secured in property rights and protected from physical abuse by private parties. Yet even our age finds it self-evident that women and young people should have been excluded from colonial political life. Since this is the case, we should not find it difficult to understand how the men of two centuries ago could accept the contradiction between their Lockean principles and their discriminatory practice without too much discomfort.

It would be both uncharitable and simplistic to dismiss the founding fathers as hypocrites because they tolerated this inconsistency. Some conflict between ideal principles and social practice is inevitable if the ideals are at all noble and the society composed of human beings rather than angels. Nor is such contradiction undesirable. Quite the opposite, since it induces men, who will always fall short of perfection in their day to day experience, to consider the possibility of alternative social arrangements superior to their own. Thus John Adams was vastly amused when his Abigail presumed to apply the Revolutionary slogans to the condition of married ladies. But after puzzling over her remarks for a month he realized that, indeed, he could discover no moral foundation for government that would justify the exclusion of any class of people from full participation. Of course it was "impossible", he wrote to James Sullivan, “that the principle of consent should ever be carried so far. But the logic was undeniable and if it were followed to its conclusion women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state.” Adams seems to have predicted the long range impact of the Revolutionary doctrine accurately enough.

Again, Patrick Henry, facing up to the contrast between his words and his practice of keeping slaves, wrote, "I will not, I cannot justify it. However culpable my conduct, I will so far pay my devoir to virtue, as to own the excellence and rectitude of her precepts, and lament my want of conformity to them."

In the final analysis, however, the contradiction was tolerable to Americans because they compared the extent of liberty in their society not with the Lockean ideal but with the extent of liberty in other contemporary or historically known societies. From this perspective there was no doubt that the Americans of 1776 were remarkably free. Even the slaves, servants, women, and children of America enjoyed positions superior to those held by similar classes in other lands and other times. And surely a land in which more than 10 per cent of the population owned property and had a voice in the government was a wonder in an age when the civilized  world was ruled by hereditary monarchs and property ownership was a prerogative of aristocrats. Even in England, where the political liberty of the early eighteenth century had made her people the envy of Europe, no more than 25 per cent of "the active male population” had voted in even the freest parts of the kingdom--and after the first third of the century even this electorate had dwindled. Yet, to quote J. H. Plumb, "this was England's vast singularity, a unique situation amongst the major powers of the world.”

Surely the gap that separated American society from the Lockean ideal was no more impressive than that which separated colonial American society from the societies of Europe. If freedom had a home anywhere in the world in the year 1776 it was in the new United States of America. But if "democracy" implies government by consent of the governed or at least by consent of a majority of those governed and not merely of an adult white male elite, then those historians from Bancroft to Brown who have described American society of the mid-eighteenth century as "democratic" are simply wrong. The opinion of Carl Becker and many others that colonial governments "did in a rough and ready way, conform to the kind of government for which Locke furnished a reasoned foundation" is vastly overstated. And the attempts of the New Left history to view the American Revolution "from the bottom up" will be superficial so long as 'the bottom" is conceived in a way that still excludes the majority of the population.