LAW & LIBERTY: THE INVENTION OF FREE LABOR

I. Introduction: In culture, theory, and law, you have a nation that treats all adult white males as independent equal individuals who know no nor suffer any distinctions or birth, rank, or status. In practice, however, you have a nation that increasingly becomes one in which some people work for others; in which some people command and others obey; in which some people have wealth and power and others remain poor and impotent; and, finally, a nation in which competition in the economic marketplace is supposed to set the rules and conditions of everyday life. As the number of dependent wage earners increases, how does the law go about bringing theory and practice into harmony?

1. The Dual English Heritage: the common law of master and servant and its mutual obligations and responsibilities--the Parliamentary laborer's and artificers statutes: regulating movement and regulating wages.

2. The English Heritage in the New World: positive laws for servants and slaves, as well as common law precedents for the former; sumptuary legislation; price and wage restraints; an emerging diluted common law of master and servant.

3. The Revolution and the End of Hierarchy: revolutionary ideals as expressed in the Declaration of Independence, the new federal and state constitutions, and revolutionary tracts (Paine's Common Sense) as a threat to hierarchical social relations.

1. Positive Law vs. Common Law--is there any place for servants, let alone masters, in the law of the new nation and its separate states? No, a nation of free and equal individuals!

2. The Common Law and the Dilution of Free Labor: How and why do common law courts come to play a role in regulating labor? Disputes over services owed; terms of contract; wage and labor obligations.

3. The Drift of the Common Law: Labor as Partly Free: What are the actual issues that judges must face? What sort of language do they use to define the employment, or employer-employee relation? The main tendencies: 1) employment at will; 2) free contract based on free will and uncoerced consent--the latter enters the discourse of the law almost from the beginning of the new nation; the former comes steadily but more slowly and certainly not all at once--Why is employment at will the exception at first? Written contracts, implied and oral contracts, printed and/or posted work rules and regulations--all serve as impediments to absolutely nonbinding work relations between employers and employees--give some idea of what early and typical employment contracts are like--and then examples of what typical labor-related cases that come before judges are like--employers who claim that employees have not rendered full and faithful labor as contracted for; employees who claim that they are entitled to wages for which they contracted and labored although they failed to carry a contract to term--the general tenor of judicial rulings: employers are entitled to compensation from employees who breach contract but only to the extent of actual damages or losses; entire contract and principle that employees are not entitled to any share of back wages for acts of breach. As one judge out it: "the performance of a year's service was the condition precedent to the obligation of payment [and must be performed in its entirety] before he is entitled to anything."

At the level of ideas these common law judges used the free labor metaphor or principle; in the words of one, "In the eye of the law they [employers and employees] are both freemen--citizens having equal rights, and brethren having one common destiny." Yet, in practice and their rulings, these same judges invariably used the metaphor of master and servant to describe the wage relationship--in the words of a Massachusetts judge: "we understand by the relations of master and servant, nothing more or less, than that of the employer and the employed." Or in the language of another judge: workers were entitled to their wages only if they performed faithfully. "When a servant...is turned away by his master before the period for which he has engaged has expired, and his dismissal be in consequence of his own misconduct, he will be entitled to no wages." Or as justice on the NY Supreme Court said in 1827: the failure to perform according to an employer's "lawful and reasonable commands" rendered a servant "burthensome and useless" and warranted immediate dismissal without wages and without compensation.

1. A Cruel World: Technological Mayhem--the industrial society with the world's highest rate of work-related deaths and accidents--remember the earlier tort cases and steam engines--look at 19th century railroads and the reports of train accidents or factory explosions or fires--take the case of our famous case for this week Farwell vs. Boston & Worcester Railroad (1842): in the four and a half years that the case worked its way through the courts, there had been 20 accidents: 10 collisions; a derailment; one instance each of people and cattle killed while walking on railroad; injury to four employees and two more killed; 25 passengers injured, 20 in a collision in June 1840--its sister railroad, the Western, starting in 1840 experienced disasters that left seven employees dead and two injured, along with one passenger dead and 15 others injured.

2. What Enterprises Owe Their Public: Patrons as beneficiaries--purchase of a ticket to travel and what it implies, safe passage--workers as victims--how the law absolves employers of responsibility for the safety of their employees.

3. Free Labor and Its Implied Perils: Free will, voluntarism, and the right to contract.

a) Assumption of risk and its monetary rewards

b) Contributory negligence

c) The fellow servant concept

V. Conclusion: The Limits of Free Labor--freeing employers from responsibility for their employees would benefit "the welfare and safety of all" by encouraging workers to be more attentive of what their fellow employees do and also to be more prudent and careful themselves. Or as another judge said: "Both [employers and employees] are equal before the law, and considered equally competent to take care of themselves." Hence to immunize a servant (worker) against the ordinary dangers of his occupation "would violate a law of nature." The worker simultaneously had full liberty of contract yet owed his employer fidelity, obedience, and sacrifice of independence.