rg! Cases ruled and adjudged in the l?93· Bnmronn. : —The imprifonment oi` this Enfant, if
- "*"·’_ juiiilied at all, mult be fupported under the Aét of 1 700, refpe&-
` ing fervants; fo that the only queition for our determination is, i whether he be a fervant within the meaning of that aét of A1'- fembly? 1 IGI. Dall. Edir. p. rg. It is clear that this indenture, by which the infant is bound to f·»··ur·, and no: to leam any trade, occupation, or labour, can- not be fupported upon the principles of commonlaw, nor by the exprels words of any ilaatute. But, it is faid, that it de- pends upon the agian gf the country; and it is evident that fuch a cullom is referred to in our laws. I have taken fome pains to. afcertain its origin and extent. This euitom feerns to have originated with the firfl: adven- turers to Virginia, and to have arifen from the circumilances of the country. Perfons delirous of coming to Jmzrim, and un- able to pay for their pailhge in any other way, ihipped themfelvea and their children, as fervants. If they were imported under indenture, thofe indentures were held good, and they were to. ferve according to their itipulation; but if there was no inden- ture, they were to ferve according to the cuiiom, to wit, live years, if of full age, or above feventeen;and if under feventeen, ’till they arrived at the age of twenty-two, or in fome places ’till twenty-four. The early laws of Virginia and Jlaryland (fome of them fo early as 163 8) {peak of thcfe fervants thus im- ported: they are called, *‘ fcrvants according to the cuitom;" •• fervants bound to fcrve the accullomary five years;" and fometimcs are defcribed as “ fervants fold for the cu(l:om." Thefe fervants were in a very degraded {ituation. They were a fpecies of property, holding a middle rank between ilaves and frecmen; they might be fold from hand to hand; and they were under the correétion of laws exceedingly fevere. It appears by all the early laws on this fubjeél, that the cuf- tom extended to imparted fervants only; and it exrended to all. fuch as were imported, whether minors, or adults. The cul`- tom was founded on neceility; and it was thought to be mutu- ally beneficial to the colony, and to the emigrant. But no fuch ` neceility exilled as to the children who were already in the pro- vince. The culiom, therefore, never extended to them; and there was in all the colonies, and particularly in Prnryjlwnia, Z1 marked difiinftion between thefe two clailhs of minors. This is to be found in the articles of the laws agreed on in England, and more fully in the laws of r682. Thcle fpcak only of im- ported fervants; and dircét how long fuch fervants, brought into the province without indentures, (hall lbrve; but, in C/wap. 1 l2, all parents and guardians inthe province are enjoined to teach the children under their care to read and write, ’till they are twel. c years old, and that rlwz they be inilruéled in {cme Mfg! tra e
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