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The Invention of Free Labor: The Employment Relation in English and American Law and Culture.

Chapel Hill: University of North Carolina Press, 1991. viii + 187 pp. Appendix, notes,bibliography, index. $39.95.

Historians have long drawn attention to the role of American courts in the history of and plight of the labor movement in antebellum America. From their antebellum interpretation of slave codes and common law rules regarding indentured servants, apprentices, "hired hands," and artisans to their treatment in the Progressive Era and beyond of protective legislation, the courts have long been regarded, quite correctly, as the final arbiters of Labor's fate. In 1977, Morton Horwitz drew our attention to what he perceived was a pattern of systematic judicial bias in the early nineteenth century, favoring employers over workers who quit "entire" contracts and sought unsuccessfully to be paid "what their labor had been worth."[1] We have long been told of the antilabor bias of the nineteenth-century state and federal courts, striking at labor with injunctions and "freedom of contract." The legal order seemed to have reflected the needs of the dominant class in the socioeconomic order.

More recent scholarship has rethought and rejected the mechanistic nature of some of those earlier assessments of the judiciary's treatment of labor. Jurists were not simply seeking to aid entrepreneurs. Instead, the courts of nineteenth-century America may best the understood as participants in what Roscoe Pound called the "taught legal tradition" of the English common law.[2] In the accounts by Steinfeld and Tomlins, jurists bent a few, but only a few, of the ancient rules regarding master-servant relations in the antebellum years, but these tended to be bent as often to labor's advantage as not. Moreover, in both of these studies, labor's own voice is to be heard, and labor receives the lion's share of the credit for the occasional victories it wrings from the common law tradition.

Robert Steinfeld's story, The Invention of Free Labor, comes first chronologically. Workers in the seventeenth century were all, in varying degrees, unfree. Until about 1700 the employer ("master") held a kind of personal sway over virtually all who labored for him, and after 1700 he still owned a kind of property right to their labor. The "possessive individualism" of the Age of Locke did not affect the employment relationship; the master still "owned" his servant's labor. Steinfeld tells us of quasi-independent artisans, ploughmen, day laborers, and domestic servants, but in telling of the invention of free labor in the early American republic, he finds indentured servitude to be, "a powerful tool for illuminating the different sense of normality of an earlier era" (p. 10).

The innovations American courts wrought dealt with compulsion and the employee's right to quit. By the eighteenth century artisans in colonial America were free to leave a job before its completion without fear of being arrested and compelled to return to work, but the same could not be said of apprentices or servants. Nonetheless, by the 1740s many indentured servants had acquired the right to seek part-time releases from service for self-employment, a Roman law import unavailable in England. By 1800, adult servants could not be subjected to physical discipline by their masters, and by 1820, in either could minors. In the same decade jurists declared the remaining indentured servants (now all recent immigrants or former slaves living in free states) to be free to quit their masters without fear of being returned to complete the terms of their agreements.

Simultaneously, hired hands and mill workers on "entire" contracts began to test the legal rules by claiming the right to a quantum meruit payment (what their labor had been worth to their employers) when they left before the end of the time they had agreed to serve, and "no one even imagined" by 1820 "that they might be compelled to serve out their time" (p. 150). Moreover,by the civil War, several northern state courts were allowing workers who quit such contracts quantum meruit recovery. Contrary to what Horwitz had claimed, the trend was one favoring workers. The law had yielded, not to "the inexorable logic of the market," but to "a complex process of contingent social, cultural, and economic struggle" led by workers themselves (p. 7). Labor was now free to move about, and employers had to use "persuasion" rather than coercion. Thus, slavery had come to stand out quite starkly from the rest of the legal terrain of employment.

Steinfeld is quick to point out that the freedom to quit, "while a real gain for laboring people," did not transform them into equals of their employers. They had secured the ballot and the freedom to get up and go, but this only "helped to obscure the systemic ways in which law continued to contribute to their oppression through the operation of ordinary rules of property and contract in a world in which productive assets were unequally distributed" (p. 9). Here Steinfeld speaks from his perspective as a member of Critical Legal Studies, generalizing about the rest of the common law. But his substantive contribution in this book is his demonstration of the ways that jurists helped workers by changing some of the rules of "master-servant" law. He might have added that the development of the rule permitting employers to fire "at win" was the downside of his freedom to quit[3] and he might have pointed to the federal Civil Rights Act of 1866, enforcing the Thirteenth Amendment, as a kind of capstone to his thesis, but I may simply like more icing on the cake than he does, and it's his cake.

Steinfeld's cake has two layers: freedom from coercion and freedom to quit.[4] In Law, Labor and Ideology in the Early American Republic, Christopher Tomlins offers three: the antebellum labor conspiracy cases, many of the same issues of antebellum employment law that Steinfeld had addressed, and the antebellum law of industrial accidents. His story, one of roads not taken, is grounded, like

Steinfeld's, in the Critical Legal Studies perspective (though I want to add that both Steinfeld and Tomlins are more sophisticated historians than any CLS product I have ever seen and could well object to being tarred with that or any other brush).

Americans of the postrevolutionary era, according to Tomlins, had "a unique opportunity ... to insist" not only on democracy but on "egalitarian outcomes" (pp. 81-82). Jurists became the final arbiters in this dialogue between Federalists and Jeffersonians, but "their choices of lines of reasoning and action" inevitably resulted in their providing "implicit or explicit endorsements of one kind of political economy rather than another, one set of social relations or vision of social order over another" (pp. xiv-xv). "Law" in the early Republic, in Tomlins's schema, encompassed "the ideology of limited (especially limited legislative) government, the protection of property, and judicial ascendancy" (p. 38). With but few exceptions, the judiciary rejected all preferred distributional visions for that of Adam Smith. By 1840 "market liberalism's umpired contest of selfish interests was the embracing discourse" (p. 217). Law's contractarian visage, however, was a "really quite deceptive" mask, oblivious to inequalities in the world, especially to the inequality of power in the employment contract (pp. 217-18). But courts were unwilling to "acknowledge" that they were endorsing and legitimizing "daily interactions" in the workplace "structured by relations of dominance and subordination" (p. 290).

It was not that judges were "willing agents of employers." Tomlins wisely distances himself from this "conspiracy" thesis. Rather they were "ideologues committed to a particular conception of the role of law in republican society" (p. 190). (Nonetheless, his contractarian judiciary clearly reinforced employer control, and there are moments when Tomlins does not seem as sure as he is at others that jurists were merely ideologically inspired in expounding common law rules that, due to their premises, generally advantaged employers. Thus he describes the process with regard to the labor conspiracy cases: "Beginning in 1806, American courts consciously seized upon English common law precedent to combat journeymen's associations" (p. 113).)

After offering a solid analysis of the development by the crown of the crime of conspiracy in the context of royal regulation of the medieval guilds and associations, Tomlins tells us of the eighteenth- and nineteenth-century labor conspiracy trials, culminating with John Bannister Gibson's opinion in Commonwealth v. Carlisle (Pa., 1821) and Lemuel Shaw's better-known one in Commonwealth v. Hunt (Mass., 1842). He skillfully interweaves in account of the efforts of journey men to create a general trade union movement in the 1830s with that of the trials, and makes the plausible case that the judiciary responded to the arguments of these journeymen as well as their more contractarian counsel by abandoning the earlier rule that such conspiracies were criminal per se. But Tomlins also points out that Commonwealth v. Hunt was hardly "the Magna Carta of American Trade-Unionism" that Leonard Levy had styled it.[5] Journeymen were free to associate and bargain collectively with employers on their own behalf, but they remained barred from interfering with the contractual rights of others to enter into their own agreements with employers.

Tomlins differs with Horwitz and virtually everyone else in explaining that the English common law had never understood the respondent superior maxim to mean that employers were required to pay for medical care for workers injured on the job. Thus the assumption of risk and fellow servant rules in Priestly v. Fowler (1837) and Farewell v. Boston and Worchester RR (Mass., 1842), while "new" in the sense that they described the rules for accidents due to the negligence of fellow servants, were not new in their denial of recovery to the injured workers. The "true revolutionaries" in the antebellum law, of industrial accidents "were not the judges who defined the fellow-servant rule, but the plaintiffs who sought to press the new claim" (p. 364).

Tomlins faults the judiciary for failing to break with past doctrine and precedent on this. He is certainly correct in noting that the fellow servant rule was not foreordained. After all, for the first fifty years of the nineteenth century the Scottish judiciary held employers responsible for injuries to employees caused by negligent fellow employees, and the Civil Law courts of France and others on the continent of Europe never strayed from that rule. Moreover, the English rule in Priestly was doubted by three members of the South Carolina Supreme Court the year before Shaw's opinion in Farewell, and, as Tomlins points out, several midwestern courts doubted or distinguished Farewell in the 1850s. (He missed only its rejection outright by Kentucky's Supreme Court in 1865.) But to say that a rule need not have persisted has a ring of judgmental hindsight and does not sufficiently come to grips with why it persisted. Attorneys then, as now, regarded a direct assault on authoritative precedent as professionally irresponsible, given the Likelihood of success. They preferred to attempt to "distinguish" their "facts" from the precedent or to urge the court to create a principled exception to it. Tomlins recognizes this; he simply doesn't give it as much weight as I think it's entitled to.

Tomlins takes issue with Steinfeld (and with me)[6] regarding workers in the early nineteenth century who sought "what their labor was worth" from their employers after quitting "entire" contracts. He maintains, on the basis of a report in a Boston newspaper, that the English rule barring such recovery for those who breached their agreements to work so many months for so many pounds was not being observed in early-nineteenth-century Massachusetts. He finds this to be credible because of the way that the dicta of one of the King's Bench jurists in 1795, a "leading case,"[7] on the subject, had been reported in two treatises in the early nineteenth century. This led Tomlin to conclude that when the New York and Massachusetts supreme courts denied textile workers and hired farmhands the right to quit and recover quantum meruit in the 1810s and 1820s, they were engaging in "innovation" (p. 274). Steinfeld's observation on these cases is that the only thing innovative about them was that there was no reference by the employer to any duty of workers who quit to return to their duties or be thrown in jail. Mine is that when a "custom" born of dicta, has flourished for less than a generation, its rejection in favor of a much older rule does not merit the label "innovation."

In essence, Tomlins faults the post-independence and antebellum judiciary for their failure to strike out in a "republican," redistributive direction instead of doing what it did: adopting English common law rules that, he says, embraced the colder, nonredistributive ideology of "market liberalism." Never mind that legislatures in these years were abolishing primogeniture, entail, debt imprisomnent and, eventually, slavery; that they were creating mechanic's hen laws, married women's property acts, homestead exemption,, and farm mortgage moratoria. Never mind that courts, as Steinfeld has demonstrated, were empowering workers in ways John Locke would never have approved of. Tomlins is aware of these changes, but on balance, he sees the refusal of jurists: to countenance the "closing" of shop floors by unions, to find worker disability insurance implied in the labor contract, and to set aside several centuries of other master-servant rules, to be both reprehensible (which they may have been) and avoidable (which is not as plausible). Jurists deliberately chose a "market liberal" ideology over its republican redistributive rival, Tomlins insists, not consciously, as a "vulgar" Marxist would have it, but because it was the rising ideology of their age, in their class and circle.

Tomlins's story certainly finds some support in David Gold's study of Maine's Chief Justice John Appleton, an exponent of "market liberalism" (or what Gold calls "responsible individualism") in the law. And it is consistent with what members of the "Law & Economics" School believe to have inspired some nineteenth-century jurists to use cost-benefit analysis to create rules that "maximized economic efficiency."[8] But while we can find evidence of this ideology of "market liberalism" in the opinions of judges like Appleton, Shaw, Gibson and others in antebellum America, I am convinced that Tomlins is backing an "also-ran." "Republican" ideology, "the public good," "humane" jurisprudence, call it what you will, was very much have in America's early-and mid-nineteenth-century courts, a survivor of a legal mentality that had outlawed engrossing, regrating, forestalling, and other such contracts against "good public policy."

One may differ with Tomlins's thesis and elements of his argument and still applaud his work, as I do, as a truly major contribution to our understanding of law, labor, and ideology in antebellum America.

Both of these studies focus on the law's treatment of labor, but each is sociocultural as well, relating labor's sorrows to the analysis in new and useful ways. Both move us effectively beyond the more mechanistic views of a previous generation, helping us to understand jurists, more or less, on their own terms. Moreover, as their footnotes make clear, the authors had been learning from one another, contributing to one another's insights over the past several years. As such, they are marvelous examples of the "new" legal history. [1.] Morton Horwitz, The Transformation of American Law, 1780-1860 (1977), pp. 186-88. See also Wythe Holt, "Recovery by the Worker Who Quits," Wisconsin Law Review (1986): 677. [2.] An example of this literature is Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (1991). [3.] Jay Feinman, "The Development of the Employment at Will Rule," American formal of Legal History 20 (1976): 118. [4.] Steinfeld addresses one of Tomlins's issues, the law of labor conspiracies, in a separate essay, "The Philadelphia Cordwainer's Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor," in Labor Law in America: Historical and Critical Essays, Christopher Tomlins and Andrew King, eds. (1992), pp. 2043. His views on the subject closely resemble those of Tomlins. [5.] Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw (1957), p. 183. For an analysis resembling that of Tomlins, see Wythe Holt, "Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication," Osgoode Hall Law Journal 22 (1984): 591. [6.] Peter Karsten, "|Bottomed on Justice': A Reappraisal of Critical Legal Studies Scholarship Concerning Breaches of Labor Contracts by Quitting or Firing in Britain and the U.S. 1630-1880," American Journal of Legal History 34 (1990): 213. [7.] Cutter v. Powell, 6T.R319 at 326, 101E.R. 573 at 577 (K.G. 1795). [8.] David Gold, The Shaping of Nineteenth Century Law: John Appleton and Responsible Individualism (1990); Richard Posner, Economic Analysis of Law (3d ed., 1986).

Peter Karsten, Department of history, University of pittsburgh, codirects the Pittsburgh Center for Social History (with David Miller of Carnegie Mellon University). He has just completed a book-length study of English and American common law from the seventeenth century to 1900.
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Author:Karsten, Peter
Publication:Reviews in American History
Article Type:Book Review
Date:Sep 1, 1993
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