Excerpted From: Anna Suranyi, In Forma Pauperis: Indentured Servitude, the Right to Counsel, and White Citizenship in the Seventeenth-century Chesapeake, 63 American Journal of Legal History 339 (December, 2023) (93 Footnotes) (Full Document Requested)

AnnaSuranyiIndentured servitude is well known as an exploitative form of coerced labor in England's American colonies. Less recognized is the fact that indentured servants, who were expected to join settler society after the completion of their terms of indenture, possessed clearly defined legal rights and protections in both English and colonial laws, even during their period of servitude. While the masters and mistresses of indentured servants possessed great impunity to engage in physical abuse and contractual fraud, servants had access to legal redress, and could sue their masters or mistresses in court. Although most servants were impoverished, these suits were brought without incurring court fees, a status termed in forma pauperis. Courts facilitated servant lawsuits and paid heed to ensuring procedural fairness; their investigations involved bringing in compensated witnesses, searching archival records, and even providing pro bono lawyers. It appears that most servants prevailed in their cases against their masters and mistresses, with outcomes that included obtaining their freedom or their withheld freedom dues, or reimbursement for overlong terms of servitude. Indentured servants' lawyers affirmed that their clients were rights-bearing members of society, persuasively utilizing terms such as 'justice’ and 'equity’ to represent their cases. The access of servants to legal remedies, the courts' commitment to ensure due process and legal representation, and the frequent victories of servants over their masters demonstrated that indentured servants were regarded as valued members of colonial society in the Chesapeake, and in other colonial regions. Unlike enslaved people, who possessed neither legal rights nor access to the courts, white indentured servants possessed inherent, though limited, rights of freeborn subjects, even when they were members of disenfranchised groups such as women, children, or those of Irish origin. The legal and social distinctions between servitude and slavery began arising half a century before Bacon's Rebellion in the 1670s, despite the fact that the uprising is often presented as a watershed in the division between indentured servitude and slavery. The affirmation of the rights of indentured servants developed in parallel with the growth of slavery, and contributed to developing ideals of white citizenship.

The mid-seventeenth-century Chesapeake was inhabited by people fulfilling a variety of novel social roles--free, enslaved, and those who were temporarily bound, such as indentured servants and apprentices. Indentured servants and former servants made up a majority of the white population of the colonies of Virginia and Maryland, while the population of slaves was rapidly increasing during this period. By the end of the century, enslaved people of African descent outnumbered whites by more than two to one. As the populations of both white settlers and slaves increased, colonial governments paid increasing attention to legislatively delineating white indentured servants as part of the settler community, although subject to coercive conditions of labor, while defining slaves, and even free people of color, as outsiders. This necessitated establishing indentured servants as rights-bearing members of the polity. Hence, colonial governments enforced limitations to their servitude and provided recourse to legal remedies for those whose conditions of labor became abusive. Servants' legal access came primarily through the ability to air grievances in both local and provincial courts, where they were supported through the remission of court fees, the willingness of courts to bring in and pay for witnesses, and most surprisingly, the provision of pro bono attorneys who significantly helped their clients pursue and win their cases. Indentured servants, both men and women, as well as free impoverished whites, many of them formerly indentured, claimed rights in court that established that they possessed unabridgeable rights attached to citizenship in colonial society. My aim is not to detail the evolution of early modern notions of citizenship in the Atlantic, of which there is an extensive scholarship, but to show how seventeenth-century settler societies in the Chesapeake strove to ensure that indentured servants and other impoverished colonial subjects were ensured the status of rights-bearing members of the polity through their ability to employ the courts to challenge exploitative conditions of labor.

The nature of indentured servitude continues to be a topic of historiographical debate. While few deny the exploitative nature of indentured servitude, there is dispute about the extent of systemic abuse and the level of opportunity stemming from the labor arrangement. On one side are scholars who argue that indentured servitude was tantamount to slavery: they critique the conception that servants could 'agree’ to a contract while under constrained circumstances, emphasize the many individuals who lacked even that choice and were forced into servitude, and underscore the fact that indentured servants were faced with the loss of autonomy and of years of independent productivity while exposed to abuse, early death, or a life of destitution after servitude. On the other hand, some scholars see indentured servitude as a way in which impoverished individuals sold or were forced to sell their labor within the confines of an unequal exploitative relationship, but one which also potentially provided some opportunity for economic advancement, as well as legal protections that deemed servants as members of settler society. To some degree, these divisions were also regional, with indentured servants more likely to experience severe abuse, to die under servitude, or to endure subsequent lives of poverty in the Caribbean, while they were more likely to survive servitude and to succeed socially and economically in the mainland colonies.

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The fact that indentured servants, the lowest of the low of settler society, were given elements of due process: the right to a trial; the right to a theoretically impartial jury; the right to call witnesses; and the right to counsel in the form of proficient, pro bono legal support, as well as the reality that courts were willing to consider servants' claims carefully, revisiting cases several times, searching archival records, and calling a number of witnesses whose expenses and time had to be paid for by the court, shows persuasively that indentured servants were regarded as rights-bearing members of colonial society. Indentured servitude was an inherently exploitative labor arrangement, but it also maintained robust legal elements that protected servants, whether indentured by contract or through the custom of the country. These rights, particularly the effective right to sue abusive employers, provided a vigorous recognition that indentured servants possessed some of the rights of citizens. Although the power balance of the early American colonies clearly favored masters, nonetheless, indentured servants, and hence all whites, even including categories of people often deemed inferior, such as women, the Irish, and children, were regarded as partaking in the nascent rights of citizenship within colonial society. However, the early development of citizenship and its partner, democracy, were thus intrinsically tied to the hardening of racist categories in law and custom within the colonial context.

Anna Suranyi, PhD, Endicott College, Department of Humanities, 376 Hale Street, Beverly, MA, USA 01915. This email address is being protected from spambots. You need JavaScript enabled to view it.