In forma pauperis: Indentured Servitude, the Right to Counsel, and White Citizenship in the Seventeenth-Century Chesapeake

Abstract Indentured servitude was an exploitative form of coerced labor in England’s American colonies, but indentured servants were expected to join settler society after completing their terms of indenture, and they possessed clearly defined legal rights and protections in both English and colonial laws, even during their period of servitude. The masters and mistresses of indentured servants sometimes engaged in physical abuse and contractual fraud, but servants could sue their masters or mistresses in court without owing fees, a status termed in forma pauperis. Courts facilitated servant lawsuits and heeded procedural fairness, bringing in compensated witnesses, searching archival records, and even providing pro bono lawyers. It appears that most servants won their cases against their masters and mistresses, obtaining their freedom, 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 recourse, 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 if from 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, which is conventionally assumed to be a watershed event 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.