M.I.P #3: Kessler-Harris on 17th c. Indentured Servants

From Alice Kessler-Harris, "Out to Work: A History of Wage-Earning Women in the United States" (1982)

“The law that regulated fair treatment for all indentured servants [in 17th century New England] subjected a woman who transgressed it to special penalties that reflected a master’s vested interest in her labor. Since her labor had been purchased for a period of years, the female was barred from doing anything that threatened to impair or interrupt her service. She could not marry without permission. If she had a child by a man who would not, or could not, buy out her remaining term, she served as much as two years extra to compensate for her reduced services and to punish the sin. Pregnancy occurred frequently among servants. About one in every five women servants in seventeenth-century Maryland seems to have been pregnant before her service ended, and the figure does not seem to have declined in the next century.”

Today’s paragraph is an exercise in correcting logic with fact. I was reminded of this stunning statistic—that around 20% of the thousands of female indentured servants in 17th-century Maryland became pregnant out of wedlock during their term of service—when I came across the following fairly common argument on Twitter about birth control and its effects on the surrounding culture. The line of thought goes something like this: “of course modern women are more permissive and/or promiscuous when it comes to sex than their predecessors were, since prior to widely available contraception anytime a woman had sex she could become a mother. She was thus incentivized to be very picky about who the potential father of her children would be, and the circumstances into which that child would be born.”

This is a very logical claim. It is essentially the law of demand: if the price of something goes down, consumption of that thing will increase; if the price goes up, consumption will decrease. In this case, the “price” of having sex is the risk of an unplanned pregnancy. It also follows that this price—the magnitude of the consequence—would be inversely correlated with how favorable circumstances were to having a child. For some women an unplanned pregnancy means dropping out of college; for others it merely means slightly readjusting a timeline that was going to unfold anyway. The “price” of having unprotected sex, then, is not the same for these two women.

In general, though, it seems only rational that in a world where women can eliminate (or greatly reduce) the “price” of sex, they will have sex more often—all upside, no downside. Conversely, if you were a social engineer who wanted to reduce sex outside of circumstances unfavorable to pregnancy, doing away with the ability to negotiate the “price” of sex (thereby restoring that price to its naturally very high levels) might look like an intriguing policy. This is a curious case of ideological cohesion among typical enemies. Even when there is profound disagreement about the normative moral value of women having sex outside of marriage—whether this is an expression of liberty to be striven for, or a social ill to be avoided—there is often total agreement about the causal relationship of “price-reducing” methods and the occurrence of the behavior. In other words, irrespective of whether one thinks that more of the behavior would be good or bad, it seems that everyone agrees that if you lower the price of the behavior, you will get more of it.

And yet, and yet. For all of the logical coherence of this theorized price-consumption relationship, it does not appear to describe reality. At a minimum, it does not appear to describe reality in 17th-century Maryland, and though I do not usually concern myself with this era, I find this example well worth thinking about. I hesitate to say that “few people in history faced a higher cost of pregnancy than indentured female servants in early America,” since I do not enjoy the practice of comparative suffering accounting. But suffice to say that the cost of pregnancy to these women was extremely, extremely high. The reason we even know the one-in-five statistic is because these women were presented in court for sentencing. Historians Lois Green Carr and Lorena S. Walsh report that “a female servant paid dearly for the fault of unmarried pregnancy. She was heavily fined, and if no one would pay her fine, she was whipped. Furthermore, she served an extra twelve to twenty-four months to repay her master for the ‘trouble of his house’ and labor lost, and the fathers often did not share in this payment of damages. On top of all, she might lose the child after weaning unless by then she had become free, for the courts bound out bastard children at very early ages."

Please pause here for a moment and really consider what those hundreds of women went through.

Moving on. This punishment uniquely afflicted indentured women. Free women also became pregnant outside of marriage, but the typical (often court-ordered) solution—which resolved the criminal nature of her situation entirely—was marriage. Unlike a free woman, however, a servant woman could not marry unless someone was willing and able to pay her master for the term she had left to serve. Consequently, “only a handful of free women were presented in Charles County for bastardy between 1658 and 1705,” but one-in-five women in servitude amounted to hundreds upon hundreds of cases.

Historians take pains to clarify that it was not the case that all of these women were helpless victims of sexual exploitation by those whom they had no ability to resist or refuse. Surely this happened, but Carr and Walsh report that “often the [fathers] were fellow servants or men recently freed but too poor to purchase the woman's remaining time,” and while “sometimes the master was clearly at fault […] masters were infrequently accused of fathering their servants' bastards, and those found guilty were punished as severely as were other men. Community mores did not sanction their misconduct.” There are essentially no surviving letters or diaries of servants in this period, so we do not have a very well-lit window through which to peer into their personal lives. However, I find it a generally good historical practice to extend actors—even those who occupy subordinate positions—some measure of moral agency, as well as the full range of human complexity. Among other things, this entails the ability to make impassioned and ruinous decisions.

I am not in any sense a scholar of early America, but I find this little episode of history a very interesting interlocutor for some of our present-day discourse. First of all, to those who tend toward the view that ill-advised sexual unions result from the decoupling of actions and their consequences, and believe such unions would occur far less frequently under natural conditions, this history suggests otherwise in pretty strong terms. Remember that the one-in-five statistic does not mean that one-in-five had sex outside of marriage—it means that one-in-five became pregnant outside of marriage. There are only a few days each month where it is possible for a woman to become pregnant, and even then it is no guaranteed result. For one-in-five indentured women to have become pregnant during their service, premarital sex would have been very widespread indeed—despite drastically higher biological, economic, legal, and social costs than could ever be imposed in the West today. This is beyond “we cannot return to the simple past,” this is “there was never any such simple past to begin with.”

The other lesson this vignette hints at is about the character of sexual decision-making, if we can even call it that. The word “passion” comes from Latin pati, “to suffer.” While the characterization of passion varied from philosopher to philosopher and from age to age, it is fair to say that until the 20th century passion’s potential for destruction and pain was always kept firmly in view. To do something as calm and orderly as “making a decision” under the influence of great passion is almost an oxymoron. We are not our most rational selves in such moments, plotting long-term strategies with our best interests in mind—we are in fact nearly the opposite.

I am not advocating for the abolition of passion (as if that were possible), but rather for passion, and all its terrible potential, to be given proper respect and deference in the modern sexual ethic. An approach that begins and ends with only the idea of consent—another highly logical proposal—misses something very essential, and very human, about the nature of these interactions. It weights every decision a person might make in any moment equally: if you begin the day at 8:00am saying that you will not do X, but at 8:00pm change your mind and do X after all—well, so long as you consented at 8:00pm, the theory of consent has nothing of interest to say. And absent a more enlightening framework to help make sense of this state of affairs, it is only natural to wonder at 8:00am the following day: “But did I really consent…?” It is possible for the answer to be yes and no at the same time, which is enough for me to pronounce this paradigm not very useful.

Incidentally, the same methodological weakness exists in neoclassical economics. The idea of “revealed preference” is the non-solution to the problem of internal conflict. It is a non-solution in that it effectively denies the problem; it declares the state of both wanting and not wanting something as invalid and therefore nonexistent. As a beloved professor explained to me once, “Economics is an empirical discipline, and we have to measure something. If people say they are going to do one thing and wind up doing something else, we have to choose which decision to measure. And we measure what they do, not what they say they are going to do.” Thus, it is said that their “true preference is revealed” in their actions, not their words. For what it’s worth, Socrates agreed with this approach—even if we dearly regret having done something one moment after we’ve done it, it cannot possibly be true that we didn’t want to do it in the moment, since otherwise we wouldn’t have done it to begin with. This is, once again, logically compelling, but as Aristotle memorably quips in the Nichomachean Ethics it is nevertheless “manifestly at variance with plain facts.” (So true, bestie.) Anyone who has ever been an addict of any sort, or been on a diet for that matter, will agree that it is possible to both desperately want and not want something at the exact same time. I find this phenomenon worthy and in need of exploring, not ignoring.

We’re a little far afield from 17th-century Maryland now, but I’ll close by saying that while I have neither the space nor the desire to positively sketch out an alternative sexual ethic at present, I do wish to emphasize that the great weight of these decisions should not be laid solely on the shoulders of people who are “in the moment,” shall we say. It is not true to assume that people will not behave a certain way if it costs them dearly enough, if it will ruin their lives, if they will bitterly regret it until the end of their days. Passion can overwhelm all of these concerns as easily as we might blow out a candle. It is also not true, however, that in instances when such destructive decisions are made that the actor was necessarily coerced by another person, or by a mysteriously omnipresent “power dynamic,” or any other such circumstance. Out of respect for the human will I do not wish to patronizingly exculpate people in advance, to condescendingly rush to their aid suggesting that if they make a bad decision, surely it could have been no “decision” at all. I grant people the power to ruin their own lives—whether through destructive sex, substances, or any other means of self-abuse. (Confronting this ability vis-a-vis one’s own decisions produces a pain like that of straightening up after having spent a stretch of time uncomfortably folded in on oneself.) However, out of love for the human soul, and out of wary deference to Passion, I desire a world in which sowing the seeds of such destruction was not made as easy as humanly possible by reducing all of the complexity of such moments to the deceptively simple question: “well, do you want to?”