Entrevista a profundidad

In September 1619 and July 1628 two indentures were entered into in England for labour in Virginia. On 7 September 1619, Robert Coopy (‘husbandman’) of North Nibley, Gloucestershire, undertook to serve a syndicate led by Sir William

Throckmorton to develop the Berkeley Plantation in the new colony of Virginia.1 On 1 July 1628, Edward Hurd, ironmonger of London, agreed to transport John Logward (husbandman) of Surrey to Virginia where Logward would serve for the term of four years. 2 Unlike the Gloucestershire syndicate, Edward Hurd was not even represented as having any interest in Virginia against which the terms of the indenture could be implemented. The two indentures, and the differences between them, constitute essential evidence of the nature of the emerging labour market in colonial Virginia. They provide a key to an understanding of the evolution of the concept of ‘servitude’ in colonial America and the subsequent treatment of

offenders transported from England and Ireland. They also record the shift that occurred in Virginia in the adoption of English law about the relationship of master and servant. In order to understand the nature of these two indentures and their significance, it is necessary to consider three questions: first, what did the law of England say about the relationship of master and servant at the beginning

1 _{The text of the indenture is set out in Susan Myra Kingsbury, The Records of the Virginia}

Company of London, vol. III (Washington, 1906), pp. 122-30. The text of the Coopy indenture forms part of ‘Smyth of Nibley Papers’ now housed in the New York Public Library. Some of these documents provide a useful description, not only of the formation of the syndicate, but also of the utilisation of labour in early Virginia. Extracts of the Papers are available online at http://www.nypl.org/sites/default/files/archivalcollections/pdf/smyth.pdf Accessed 9 July 2102. The Papers were written or collected by John Smyth (1567-1640), from Nibley in Gloucestershire, England, who was one of the original promoters of plantations and settlements in the second Virginia colony in North America.

2 _{The text of this indenture is set out in Virginia Carolorum (E.D. Neill, Albany, 1896), p. 57.} Ballagh notes ‘An indenture of 1628, made after the assignments of contracts were recognized in Virginia, may be taken as typical. Ballagh appears to be referring to the operation of the 1619 Act of the House of Burgesses which is considered below. See James Curtis Ballagh, White Servitude in the Colony of Virginia: A Study of the System of Indentured Labor in the American Colonies

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of the seventeenth century? Second, what was the nature of the foundation of the colony of Virginia which gave rise to the two indentures? Third, what happened to the English law of master and servant once it crossed the Atlantic?

Turning to the first inquiry: what did the law of England say about the relationship of master and servant at the beginning of the seventeenth century? In 1585 the text

De Republica Anglorum was published in England. De Republica had been written by Sir Thomas Smith a civil law scholar, diplomat and, between 1572 to 1576, Secretary of State to Elizabeth I. Smith died in 1577, before the publication of De Republica Anglorum, but the text remained in print until the 1640s,

underscoring its contemporary application.3 Smith presented alternative views of England, its society, and the operation of its laws. The first view was hierarchical, with the monarch at the top of the society, descending first to the nobility (greater, then lesser), then to knights, gentlemen, squires and yeomen (reflected in urban society by citizens and burgesses).4 Beneath this hierarchy was what Smith referred to the 'fourth sort of men which do not rule'. Into this stratum Smith placed day labourers, poor husbandmen, merchants or retailers who have no free land, copyholders, and all artificers. Smith did concede, however, that in rural communities even the ‘fourth sort of men’ carried out civic duties such as church

wardens and constables. While Smith recognised the existence of the towns and boroughs, his model was essentially rural and reflected the demography of the

3 _{Mary Dewar ed. De Republica Anglorum (Cambridge, 1982). See also Ian W. Archer, ‘Smith, Sir} Thomas (1513–1577)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008. [http://www.oxforddnb.com/view/article/25906, accessed 7 June 2012]. 4 _{Dewar, ed., De Republica Anglorum, Book I, Chapters 16-24, pp. 64-77. This hierarchical} approach was utilised two hundred years later by William Blackstone in his Commentaries on the Laws of England in 1765.

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time, but failed to identify the increasing urbanisation of early modern England and its impact upon his hierarchical viewpoint.5

Smith also offered a second, societal, view of early modern England. This view centred on the household or family presided over by a married man, and included his wife, children, and servants, his cattle and his property.6 Of interest to this thesis are Smith’s views about servants contained in Chapter eight of Book III and

their obligations to their masters.7 Smith dismissed the idea that any form of contemporary bondage to land or person still existed in England, while noting the exceptional position of apprentices. He differentiated the position of a bonded slave as described in Roman Law from that of an English apprentice, pointing out that an apprenticeship ‘is but by covenant, and for a time’.8 The position of apprentices becomes relevant below. The general picture of servants was painted by Smith in the following terms:

Besides apprentises, others be hired by the yeare for wages, and be called servaunts or serving men and women throughout the whole Realme, which be not in such bondage as apprentises,9

Depending whether they were married or single, servants would be required to serve for one year, either by covenant or by law, meaning under the threat of coercion by the justices.

While employment constituted the normal picture of society, the contemporary anxiety about the unemployed was expressed by Smith in the following terms:

5

In 1571 the population of England was around 3.7 million which was almost entirely rural. The three largest towns were London with around 60,000 people, Norwich with 12,000 and Bristol with 10,000. John Guy, Tudor England (Oxford, 1988), p. 32.

6 _{Dewar, ed., De Republica Anglorum, Chapter 11, pp. 58-9.} 7

Confirming the proximity of the law of master and servant with that of laws applicable to family and households described in Otto Kahn-Freund, "Blackstone's Neglected Child: The Contract of Employment," Law Quarterly Review, 93 (1977), pp. 508-28.

8 _{Dewar, ed., De Republica Anglorum, p. 141.} 9

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And if any young man unmaried be without service, he shalbe compelled to get him a master whom he must serve for that yere, or else he shalbe punished with stockes and whipping as an idle vagabond. And if any man maried or unmaried, not having rent or sufficient to maintaine himselfe, doe live so idely, he is enquired of, and sometime sent to the gaole, sometime otherwise punished as a sturdie vagabond: so much our policie doth abhorre idlenesse.10

Smith’s concern here reflected his hierarchal view of society and the need for

subordination of labourers to societal norms and stressed the proximity by subordinating behaviour and the punishment of those who failed to conform. Smith justified this approach by arguing: ‘So that all youth that hath not sufficient revenues to maintaine it selfe, must needs with us serve, and that after an order as I have written.’ But he went on:

Thus necessitie and want of bondmen hath made to use free men as bondmen to all servile services: but yet more liberally and freely, and with a more equalitie and moderation, than in time of gentilitie slaves and bondemen were woont to be used, as I have said before.11

Perhaps unconsciously, Smith had described a social and legal structure which could, at the same time, claim to be free of slaves and bonded men, but in which labourers could be coerced by law, administered by the justices of the peace, to labour for one year for anyone who wanted servants; and at wage rates also fixed by the justices. Four hundred years after Smith, the American historian Robert Steinfeld was to rationalise this apparent dichotomy in the concept of

‘unfreedom’.12

As in the case of the apprentice, entry into husbandry or other forms of service was voluntary. But behind the freedom to contract was the coercive power of the justices to force employment.

10 _{Dewar, ed., De Republica Anglorum, p. 141.} 11_Ibid.

12 _{Robert J Steinfeld, The Invention of Free Labor: The Employment Relation in English and}

American Law and Culture, 1350-1870 (Chapel Hill, 1991), pp. 3, 5. In 2008 another American historian, A.L. Beier, characterised the early modern labour laws of England as creating modern form of serfdom. A.L .Beier, “A New Serfdom”, Labor Laws, Vagrancy statutes, and Labor Discipline in England, 1350-1800’, in AL Beier and PR Ocobock, eds. Cast Out: Vagrancy and Homelessness in Global and Historical Perspective (Athens, Ohio, 2008), pp. 35-83.

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In 1562, the year that Smith first went as ambassador to Paris, Elizabeth I’s

second parliament passed An Acte towching dyvers Orders for Artificers

Labourers Servantes of Husbandrye and Apprentises. This was the statute 5 Eliz I c. 4, usually referred to as the Statute of Artificers. The statute codified laws and practices reaching back to the 1350s and framed the English statute law of master and servant until the first half of the nineteenth century.13 Of relevance to this thesis is the proximal relationship that Sir Thomas Smith described between the law, the freedom of labour (or unfreedom) in the context of the coercive power of the state, and the punishment of those labourers who were disinclined to labour at all or were disinclined to labour at the wage rates set by the justices.

The Statute of Artificers addressed two broad principles; one was the control of the labour supply, the other was the performance of work by servants or what The American historian AL Beier described as ‘discipline’.14

Labour controls were achieved through the justices in local sessions setting wage rates. Terms of labour hirings were set once a year in specified trades, and a quarter of a year notice was necessary (from either side) for termination. The approval of the justices could be required.15 Minimum work hours were set, and unemployed labourers could be required to complete compulsory work, for example, at the time of harvesting. Written testimonials were made compulsory to allow labourers to move between

13

The statute of Artificers was not repealed until 1813. See the statute 53 Geo III c. 40. It was still in place when New South Wales was first settled. A useful summary about the formulation of the statute is contained in Donald Woodward’s ‘The Background to the Statute of Artificers: The Genesis of Labour Policy, 1558-63’, The Economic History Review, New Series, Vol. 33, No. 1 (Feb., 1980), pp. 32-44. Stanley Bindoff provides a useful analysis of the awkward passage of the legislation through the parliament, affirming that the final legislation was devised by the

legislature, and not by the government. ST Bindoff, ‘The Making of the Statute of Artificers’, in

Elizabethan government and society : essays presented to Sir John Neale, ed. ST Bindoff, J Hurstfiels, and CH Williams, (London, 1961), pp. 56-94, at pp. 92-3. Beier described the statute as ‘the most thorough piece of legislation governing labor in modern England.’ Beier, ‘A New Serfdom’, p, 45.

14 _{Beier, ‘A New Serfdom’, p. 45.} 15

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masters and from place to place. At the same time, the justices were empowered to punish servants who failed to turn up for work, or for refusing to work. Justices also had the power to approve dismissals and could punish masters who enticed labourers away from current employment. Marxist historians, such as Douglas Hay, argued that by handing arbitral powers to the justices meant, in effect, that the judicial control of labour, including the means to control wages, and hence the cost of labour, passed into the hands of representatives of the landowners, hence the masters.16 The powers of the justices to control the cost and availability of labour sat alongside the power of the justices to control and punish vagabonds considered in Chapter 2.17 The supervisory powers of the justices included the power to order the whipping of insubordinate servants, abatement of wages, and imprisonment for servants who breached their contracts.18

The Statute of Artificers also reflected the categorization of labour that had emerged during the sixteenth century according to the circumstances of their employment. Servants in domestic service were differentiated from those in agrarian work. While agrarian workers could be further differentiated between servants in husbandry who were engaged on contract for one year, or labourers who were engaged for weekly, or even daily, hire.19 While the distinctions between workers differed over time and from place to place, servants, both

domestic and those in husbandry, were usually young, hired by the year, and lived in the household of the master. In order to ensure their availability for the harvest, agricultural workers were sometimes only paid at the end of their term of

16 _{Douglas Hay in ‘England, 1562-1875: The Law and Its Uses’, in Douglas Hay and Paul Craven,} eds., Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955 (Chapel Hill: 2004), pp. 59-116, at p. 63.

17 _{Beier, ‘A New Serfdom’, pp. 46, 47-9.}

18 _{Section VI and see Hay, ‘England, 1562-1875’, p. 67.} 19

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employment. This could disadvantage a worker if the harvest was poor or wages were in arrears. Labourers, on the other hand, were often hired by the day, might be married and might live at home and work for several masters.20 In some

industries contractual practices differed from the Statute, or developed regional or occupational variations. Some industries relied upon written contracts (such as seamen), while others did not. Skilled tradesmen could ensure security by demanding written contracts for periods longer than one year which were actionable before the courts.21

By 1562 two additional classifications of workers were also recognised; artificers and apprentices. Artificers could be servants, but also masters in their own right in that they might be qualified tradesmen or craftsmen. Apprentices, on the other hand, as Sir Thomas Smith pointed out, were bound by indenture to serve a master for a term of years in return for being taught a trade. The Statute of Artificers adopted the London practice of setting the standard length of service for an apprentice at seven years. Apprentices could also be of two different classes. The first were voluntary apprentices whose obligations generally arose from

negotiations between parents or guardians of youths (men and women) in their mid-teens who desired to learn a craft. The conditions of apprenticeships were often pre-determined by the craft Guilds. Under these arrangements the apprentice master maintained the apprentice with food, clothing, and housing and, in return could retain any earnings of the apprentice.22 During the term of the

apprenticeship the apprentice was required to serve the master faithfully.

20 _{Hay, ‘England, 1562-1875’, pp. 63, 66.} 21 _{Hay, ‘England, 1562-1875’, pp. 68-9.} 22

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The second class of apprentices were in an altogether different position. These were pauper or parish apprentices caught in a system devoted more towards keeping the children of poor parents from falling onto the community (the parish) for charitable support than it was to teaching the child a trade. Some

apprenticeships were compellable under the statute. Sometime pauper apprentices were simply employed in unskilled work. A pauper child of seven to eight years could be apprenticed to a master with only the approval of the parish overseer of the poor, even against the opposition of the parents. The term of a pauper

apprenticeship could last until the apprentice reached the age of twenty-five.23 The concept of compellable pauper apprenticeships and such apprentices being in a state of servitude, though not normally mentioned in the literature, constitutes a link in an ‘unfree’ labour market between negotiated employment and coercive

employment which was to become manifest in colonial Virginia. Addressing the House of Commons Select Committee on Transportation in 1837, the chief justice of New South Wales, Sir Francis Forbes, argued that property in the service of transported offenders carried the same characteristics as the relationship between a master and his apprentice.24

Two aspects of the early modern English law of master and servant relate

specifically to this thesis; first, as suggested by Sir Thomas Smith, the formation of the relationship of master and servant in England rested upon the law of contract. Second, an existing contract was exclusive to and between the parties. While the Statute of Artificers may have allowed for some element of compulsory labour as indicated above, the formation of a contract of employment, whatever

23_Ibid.

24_{Report from the Select Committee on Transportation: together with the minutes of evidence,}

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the form of the contract may have been, rested on the capacity of sui generis, that is the capacity to contract. Put another way, except as required by law, duress negated consent. Freedom to contract for personal services also arose out of the meeting of minds both of the servant and the master, each agreeing that the other was a necessary part of the intended contractual relationship. Sir John

MacDonnell stated the proposition this way: ‘Master and Servant both contract with regard to the personal qualities of each other. The relationship is one of personal confidence, and the one cannot compel the other to accept a third party in substitution.’25

This resulting exclusivity meant that, in England, the existence of a contract of employment, except in the case of apprentices, was subject to the usual provisions of the common law and gave no rights to either the master or the servant other than what was contained in the contract.26 Importantly, neither the master nor the servant could substitute a third party into the relationship and any unexpired portion of a contract of employment would, for example, upon the death of the master, not give rise to any residual obligations on the master’s estate. This was so evident that there was no English case law on the subject throughout the entire period of this thesis. The exception was the case of apprentices which was justified on grounds of public policy to protect the continued education of an