Differential Tolerances and Accepted Punishments for Disobedient Indentured Servants and Their Masters in Colonial Courts
Melissa A. Roe, Lafayette College
This study looks at the different punishments of servants and their masters in colonial courts by examining various court cases from 18th-century Pennsylvania and Maryland courts. Specifically, court dockets from Philadelphia and York Counties, Pennsylvania, and Prince Georges County, Maryland were examined. The purpose of this study is to ask what were the “customs of the land” regarding indentured servants and their rights, why these were the customs, and whether these customs were exploitive. By exploitive we mean that the punishment meted out to the servant was greater than the economic loss to the master resulting from the “crime.” The three principal crimes involving servants were abuse/neglect of a servant by a master, running away by a servant, and pregnancy among female servants. The principal issue addressed in this thesis is whether the pattern of punishments favored masters, implying that criminal servants were exploited; whether sentences favored servants, implying that punishments under-compensated masters; or whether sentences were efficient, implying that punishments justly compensated masters for lost time and expenses, plus any deterrent effect. Although cases involving abuse and neglect were found, they could not be systematically studied. This study, therefore, examines only those cases involving runaways and pregnancies. It is possible that courts in a rural area (i.e., York County, Pennsylvania and Prince Georges County, Maryland) did not rule fairly, ruling more often in favor of the master. Because these rural counties had small and dispersed servant populations, it was more likely that the trial judge had social ties with or knew the master. It was, therefore, less likely that the judge would rule against the master in a case pitting servant against master. Given these circumstances, it is possible that servants were exploited in the sense that punishments exceeded economic costs. The evidence to be presented below, however, suggests that this was not the case. This research and the subsequent findings are important because although there has been much research in the area of indentured servitude concerning efficiency in contract choice and contract length, with the exception of Grubb (1989) no one has systematically looked at the data with respect to punishments meted out to indentured servants. Historians have claimed the indenture system to be exploitive, yet economists say it was efficient. It has been shown by economists that the length of servitude was equal to the cost of the voyage to America, maintenance cost of the servant, and freedom dues given to the servant at the expiration of the contract. Economists have even gone so far as to claim that those who entered servitude usually did better than those who migrated to America and immediately bought land, because a period of servitude allowed them to learn the customs, culture, and language of America. This research, however, investigates whether the system was exploitive when conflicts arose between masters and servants.
Indentured servitude first appeared in America a little over a decade after the settlement of Jamestown in 1607. Labor was scarce; land was abundant and transportation costs to America were high compared to wages in England. An early economist noted that ...industry is limited by capital; but, through lack of labor, its limit is not always reached in older communities and seldom if ever in newer countries. Capital is an accumulation of labor and, like land, yields most when quickened by human toil. So dependent is capital upon labor that what is taken to new settlements often wastes away through lack of a labor supply.1 One obstacle to migration was the high cost of transportation. The Virginia Company, attempting to overcome high transportation costs, developed various schemes to increase migration; these schemes resulted in indentured servitude. The indenture system “allowed for labor mobility from England to America...which made available the cultivation of vast amounts of new land” that would “satisfy the demands of the large English market” resulting in a marginal productivity of labor in agriculture exceeding that in England. The Virginia Company eventually sold the labor of the servants to individual planters, forcing the planters to incur all costs of supervision and enforcement of contracts, including risks of escape or death of the servant. The indenture system, although initiated by the Virginia Company, was quickly utilized by private planters and merchants. Because this system worked so well in attracting labor to America, it remained in use long after the Virginia Company went out of business in 1624.2 Market efficiency occurs when the marginal revenue product of labor is equal to the wage. In other words, the price paid for the servant equals the value of the servant’s contract length. Although the typical servant contract in England was for a period of one to two years, those in America were considerably longer. This was because the transportation costs were high, and the lender needed to recover his investment, forcing servants to enter into longer contracts.3 Contracts were usually four to seven years long depending on the details. If a servant contracted to be taught a specific trade or skill or an education, the contract length would increase. Economists such as Farley Grubb and David Galenson have examined indentured servitude in colonial America and suggested that the system was efficient and, thus, fair. Historians, however, have looked at various practices of physical coercion and abuse, as well as punishments prescribed by law for criminal and runaway servants, and have claimed the system to be exploitive and cruel.
Pennsylvania and Maryland Laws Concerning Indentured Servants
Colonial Americans developed laws regarding indentured servants as needed. The following presents a selection of relevant legislation passed at different times, in both Pennsylvania and Maryland, which reflect legal solutions to the problem or runaways and pregnant servants. A Pennsylvania law passed prior to 1682 concerning runaway servants stated that the servants “shall be Adjudged by the Court to double the time of such their absence by future Service over and above other Damage and Cost” and that anyone aiding the runaway “Shall forfeit twenty pounds to the Master...and be fined five pounds to the Court...” Also, anyone harboring or concealing a runaway shall forfeit “ten shillings for every Day’s entertainment or Concealment.”4 In 1683, Pennsylvania enacted a new law providing for a “penalty of five days for every days [sic] absence, after the expiration of ... Servitude”; further, the servant must make “Satisfaction for the Damages, costs, and chairges [sic], to be determined by the County Courts.”5 No Pennsylvania law was found regarding punishments for pregnant female servants, implying that punishments were to be left to the local courts and determined by local custom.
Laws in early Maryland prescribed punishments considerably more severe than those in Pennsylvania. In 1638, for example, several lashes were the punishment for running away. In the following year, the punishment was extended to hanging the runaway. By 1641 the law was changed such that death would be the punishment unless the servant requested that his or her service be extended after the expiration of the contract. The service could be extended up to twice the time absent, not to exceed seven years.
In 1650, time was doubled and the servant was responsible for damages and costs incurred by the master during the servant’s absence. In 1666 the law was again altered providing that a servant would serve 10 days extra for every one day of absence.6 Maryland also spelled out specific punishments for servants becoming pregnant during their terms of service. As early as 1684, “An Act Concerning those Servants that have Bastards” provided that a servant unable to prove paternity would be held responsible for costs imposed on her master. If paternity could be established and the father was also a servant, he was held responsible for one-half the costs. If a freeman were the father, he was responsible for the entire cost. A 1692 law subsequently established severe penalties for white servants having mulatto children, reflecting social inhibitions concerning mixed-race relationships.7
Data, Results, and Discussion
The data for this research were gathered through various court records and documents from counties in Pennsylvania and Maryland, both states with considerable influx of indentured servants. The first step was to examine the quarter session dockets of the common pleas court in York County. Twelve relevant cases were found for the period 1749 - 1786. Eighteenth century York County was a rural, largely agriculture area with a small servant population, and thus the number of court cases was quite limited.8 Owing to the limited amount of Pennsylvania data, 10 additional cases from Prince Georges County, Maryland, covering the period 1696-1699, were also reviewed (as reprinted in Smith and Crowl, 1964). Court dockets from Philadelphia were also examined, but no cases involving runaways or pregnant indentured servants were found. The court records list the servant’s name, his/her master, the charge against either the master or servant, and the court ruling. Data limitations also demand case study methods rather than econometric analysis. Case study methods allow for an analysis of how court rulings differed in different areas: rural and urban, agricultural and industrial.
In order to determine whether the courts were fair in assigning extra days in response to the crimes, average earnings per day must be determined. Donald Adams estimated that daily wage rates for men in 1760 were $0.33.9 To estimate the productivity of female servants, Fogel and Engerman estimated that female slaves produced 60 to 80% of male output, and thus would have earned 60 to 80% of male wages in a competitive market. Assuming that servant productivity ratios would be similar, 60% of the daily wages is $0.20, and 80% is $0.27. These two values thus create an upper and lower bound for female productivity.10
If a servant were to become pregnant, the court would need to consider
lost earnings and medical costs when assigning her extra service. Again,
using data regarding slaves, a pregnant slave was usually given “light
work,” or 50-60% of normal activity, once it was known that she was
pregnant. Fifty percent of a woman’s product would range from $0.10
(lower bound) to $0.11 (upper bound). This half-time work load usually
began in the third month and lasted until the eighth month. During the
last month of pregnancy the slave’s work was reduced to nearly nil.11
For the next year it can also be assumed that the woman would continue to
work only at 50% of her usual work load because she had to breast feed
and nurture the baby. Women slaves were “laid up” for about four weeks
following childbirth, followed by another year of “light work” because
they had to breast feed about four times per day.12 The total amount of
earnings from the pregnant woman is then subtracted from normal earnings
of a woman servant, thus showing earnings lost due to pregnancy. The
total cost of the pregnancy, then, would include lost earnings and
medical costs. Table 1 shows the costs of a servant pregnancy imposed on
the master. Based on the above assumptions concerning productivity and
wage rates, Table 1 shows that masters would have been compensated for a
female servant’s pregnancy if the court ordered her to serve an
additional 280 days using the lower bound productivity estimate. Using
the upper bound estimate a female servant would have had to serve an
extra 320 days to compensate her master for foregone productivity and
Table 1Calculation of the Costs of a Servant Pregnancy to the Master
Daily ($) Daily ($) Total ($) 18 months 60% 80% 60% 80% Male Daily Earnings 1760 0.333 Full Female Product 0.1998 0.2664 107.892 143.856 Product During Pregnancy: Months 3 - 8 0.0999 0.1132 14.985 16.98 Month 9 0 0 0 0 Month 0 0 0 0 0 Months +1 to +11 0.0999 0.1132 35.964 40.752 Medical 1 1 Net Lost Product 55.943 85.124 Extra Days at Going Wage Rate 280 320
To see whether the courts ruled fairly, the number of days assigned by the court can be compared to the number of days calculated to make up for the cost of the pregnancy. If the earnings from the extra assigned days were significantly greater than the cost of the pregnancy, the system was exploitive (taking into account that some extra days may have been assigned as a deterrent to other female servants). If the earnings from the extra days assigned were less than the cost of the pregnancy, the servant actually benefited from having a baby during servitude. If the earnings from the extra assigned days were equal to the cost of the pregnancy, the system was not exploitive.
Table 2 reports information on cases involving servants who became
pregnant during their contract term. As the table reveals, a woman
servant who became pregnant during her servitude on average served an
extra 240 days. Compared with Table 1, it can be seen that the average
time ordered of 240 days is below the calculated number of extra days the
woman should serve of 280 - 320 days, depending on the productivity of
the woman servant. Table 2 further breaks down the extra days the court
ordered by separating the cases between the two counties, York and Prince
Georges. Although the overall average number of extra days fell below
the calculated days, when broken down it appears that Prince Georges
County assigned an average of 188 extra days, while York County courts
assigned an average of 398 extra days, a major difference of 210 days
between the two counties. These results suggest that Prince Georges
County courts under-compensated masters, while York County courts
over-compensated masters. It should be noted, however, that there was
most likely an element of punishment for the servants for their deviant
behavior of running away, getting pregnant, or both. This punishment was
meant to deter the servant from any further disobedient action, as well
as to deter other servants from behaving in that way.
Table 2Servants Who Became Pregnant During Their Contract Terms
Court Ordered Whipping County Year Child Servant Name Extra Days to Serve (number of lashes) Prince Georges, MD 1699 Abigaile Clifford 0 30 Prince Georges, MD 1699 Deborah Woodfield 260 10 Prince Georges, MD 1697 mulatto Jane Harris 0 16 Prince Georges, MD 1697 Elizabeth Pole 0 12 Prince Georges, MD 1699 Susanna Grimes 260 0 Prince Georges, MD 1698 mulatto Elizabeth Sapcott 520 0 Prince Georges, MD 1698 Mary Vinson 260 15 or 300 lbs tobacco Prince Georges, MD 1697 Joane Wood 130 0 Prince Georges, MD 1697 mulatto Margery Burgis 260 20 York, PA 1778 Judith Manning 326 0 York, PA 1774 Maria Trareyfunkaik 520 0 York, PA 1755 Eliza Bankhousen 348 0 Total 2884 Total 143 Average 240 Average 12 Prince Georges, MD Average 188 York, PA Average 398
In addition to extra time, pregnant servants were sometimes punished by whippings. The average Prince Georges servant received 12 lashes in addition to her extra service, but the number of lashes ordered by the court ranged from zero to 30. In the case where 30 lashes were ordered, the servant, Abigaile Clifford, was a third offender.13 The table reveals that some servants, such as Abigaile Clifford, Jane Harris, and Elizabeth Pole, all of Prince Georges County, were not ordered to serve extra time but only to be whipped. It also shows that in the 12 cases involving pregnancies of servants, six servants (50%) were not whipped. No servants from York County were whipped. While servants in Prince Georges County were obviously sentenced to fewer extra days (188 days) than their counterparts in York County (398 days), servants in Prince Georges County were whipped as both a punishment and deterrent to other servants. York County courts perhaps did not want to punish the servants physically and therefore ordered the woman simply to serve additional time rather than inflict corporal punishment. It is also interesting to note that the cases in Prince Georges County occurred between 1697 and 1699, while the York County cases occurred about 80 years later, between 1755 and 1778. This change in the courts’ rulings concerning corporal punishment may reflect changing times, or changing social mores. As real wages rose in Britain, better contract terms were needed in order to attract servants to America. Perhaps as a result, corporal punishment was phased out. Although this was not reflected in legislation or in the terms of indentures, the customs of the land may have adapted to changing economic conditions and social values.
But how much was a lash worth in terms of extra days during the last years of the 17th century? The case of Mary Vinson (Table 2) shows that the court allowed a substitute of 300 pounds of tobacco for the 15 lashes at the public whipping post. One pound of tobacco was worth about one pence in 1700,14 so that 300 pounds of tobacco was equal to 300 pence, or 1.3 pounds sterling.15 Thus 300 pence was equal to 15 lashes, so that 20 pence equalled one lash. Converting it into dollars, one lash equalled $0.385. It has already been determined from Table 1 that a female’s wage rate (productivity) ranged from $0.20 (60% of the productivity of a male) to $0.27 (80% of the productivity of a male). Therefore, $0.38 is approximately 1.5 to two day’s worth of female output.
Adding together the actual number of extra days assigned for pregnancy with the day-equivalents of lashes, it is seen that female servants who became pregnant were ordered to serve the equivalent of 212 extra days (188 + (2)(12)), still well short of the 398 days in York County. It seems likely, however, that the emotional and physical trauma of a public whipping may have been considerably more severe than the equivalent of two days extra work per lash. Assuming that everything else remained constant (wages, productivity, etc.) between the 1690s and 1770s, it is possible to construct an alternative day-equivalent per lash. Subtracting the average Prince Georges County punishment (188 days) from the average York County punishment (398 days) and dividing by average lashes (12), provides an estimate of 17.5 days/lash; thus punishment by public whipping appears quite harsh, indeed.
The significance of this is that whippings were extreme punishments used both to embarrass the servant as well as to deter other female servants from becoming pregnant during their term of servitude. Again, as the times changed between the 1690s and the 1770s, social mores no longer condoned whippings as either punishment or deterrent for servant fornication and pregnancy; the courts simply made the servant serve extra days (see Table 2).
If a servant ran away, the courts again would need to consider various
factors when assigning the runaway extra service to make up for lost
earnings. Costs to masters would include not only lost earnings during
the servant’s absence, but the apprehension and jail costs, for which
masters were responsible. Any additional court costs would also be
added. Again, similar to the pregnant female case, a wage rate for male
labor needs to be determined. The earnings from the servant’s extra days
of work can then be compared with the costs associated with the servant
running away, as mentioned above. Again, if the earnings from the extra
assigned days were greater than the cost of running away, the system was
exploitive. If the earnings from the extra assigned days were less than
the cost of running away, the servant benefited. If the earnings from
the extra assigned days were equal to the cost of running away, the
system was not exploitive.
Table 3Results for Servants Who Ran Away During Their Contract Terms
Expenses Incurred Expense Per Court County Year Servant Name Days Absent By The Master ($) Day Absent ($) Ordered Days Prince Georges 1696 John Payne 7 70 York, PA 1786 John McGee 36 63.20 1.76 392 York, PA 1785 Francis Karns 132 York, PA 1782 James Hamilton 135.53 912 York, PA 1780 Thomas Williamson 198 1350.00 6.82 1172 York, PA 1775 Thomas Horan 26 9.78 0.38 198 York, PA 1775 William Black 392 York, PA 1768 James Linegan 260 York, PA 1766 John Mackley 98 90.43 0.92 1300 York, PA 1759 Ann Crookson 20 9.35 0.47 260 Average Expense Per Day Absent for entire sample $2.03 Average Expense Per Day Absent for a Male (Excludes Williamson) $1.60 Average Extra Days to Serve Per Day Absent 10
Table 3 reports cases involving servants who ran away from their masters. As the table shows, there was a large variance in the expenses incurred by masters, and thus in the amount of extra time the servant was ordered to serve. The expenses recorded during the court hearing are assumed to be the total amount of lost wages/product and the costs of finding and apprehending the servant as well as the court and jail fees. The highest expense incurred by a master occurred in the case of the servant Thomas Williamson of York County, where the master’s expenses totalled $1350. Several cases did not specify the amount of expenses the master incurred and/or the amount of time the servant absented himself. The average number of extra days to serve per day absent was 10 days. Looking at the counties individually, the number of extra days ordered by the court was an average of 10 days for both York and Prince Georges counties. Despite the fact that the nine cases from York County vary in extra days to serve per every day absent, the average resulted in 10 days being assigned per every day absent, with a standard deviation of 2.90 days.
The average expense the master incurred per day of servant absence was $2.03. Because there is only one case involving a woman, Ann Crookson, that case was disregarded in order to examine the results for men systematically. The case involving Thomas Williamson, where the master claimed his expenses to be $1350, was also disregarded because that expense seems extreme. Thus, the average expense per day absent for male servants (without Williamson) was $1.60. Dividing that expense of $1.60 by the daily product of a male worker, $0.33, the number of days a servant would have to work per day absent to make up for the master’s losses was five days. Because the average amount of days ordered by the court per day absent was 10 days, it is apparent that the servants were not excessively punished. On average these male servants served an extra five days on top of what was necessary to make up for the costs of them absenting themselves. This was the punishment for the crime of running away. This system of punishment of runaways, therefore, was seemingly not exploitive.
In conclusion, the hypothesis has been supported; the cases in York County and Prince Georges County suggest that the punishments ordered by the courts were not exploitive. The female servants who became pregnant during their term of servitude were ordered on average to serve 240 extra days and receive 12 lashes at the public whipping post. Although the extra days varied considerably when the counties of Prince Georges and York were examined separately, the additional extra days assigned from York County courts replaced the corporal punishment of public whippings. Therefore, the punishments for female servants who became pregnant during their term of servitude were not usually exploitive.
Servants who ran away generally were not exploited. The average servant who ran away caused his/her master monetary losses that could be compensated by serving an additional 7.5 days for every day absent. The data show that servants on average served 10 days for every day absent, with 2.5 days included as a punishment and deterrent to other servants. Therefore, the punishments for runaway servants were also not usually exploitive.
The results of this study support the economic historian in her belief that the 17th- and 18th-century system of indentured servitude was efficient and effective in increasing the labor supply in America. Examination of the individual court cases involving servant crimes also shows that indentured servants were not exploited or mistreated once they arrived. The evidence, however slight, does not suggest that the indenture system was biased toward masters. Servants were not abused in large numbers and punishments were not particularly severe. These results are encouraging in light of recent research, which argues that indentured servitude was an efficient mechanism of international labor mobility. Servants were not exploited by the initial labor contract, nor by their treatment once they arrived in the New World.
1 Herrick (1926), p. 1.
2 Ibid, p. 12
3 Galenson (1981), p. 8.
4 Herrick (1926) appendix, p. 28.
5 Ibid, p. 166.
6 Grubb (1989), pp. 2-3.
7 Smith and Crowl (1964), p. xlvi.
8 It should be noted that the court dockets were not only in their original form, but the handwriting was extremely difficult to read. Each court docket book contains approximately 200 pages, where each page was carefully examined for the cases involving indentured servants. The court dockets for York County were retrieved from the York County Court House attic, while the Court Records of the Mayor of Philadelphia were retrieved from the Philadelphia Archives Department. Data for colonial America, especially concerning indentured servants, are extremely limited and difficult to find. This then limits the kind of research available to someone wanting to pursue other areas regarding indentured servants. Salinger (1981) estimated that the number of servants in rural Pennsylvania counties ranged from a low of 25 in Northampton County to as many as 400 in Lancaster County. Given York County's location and population, it is likely that there were fewer than 100 servants in York County in the 1770s.
9 Adams (1986), p. 633-634.
10 Fogel and Engerman (1974), p. 77.
11 Ibid, p. 122.
12 Ibid, p. 123.
13 Smith and Crowl (1964), p lvi.
14 Walton and Rockoff (1994), p. 90.
15 From the Court Records of Price Georges County, Mayland. Regarding the crime of fornication, the court set 400 pounds of tobacco equal to 1 pound of silver. Thus, 300 pounds of tobaco as equal to 0.75 pounds of silver, which is equal to 15 shillings.
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