American patriots of the revolutionary generation were quick to equate the growing control exercised by England over the colonists' lives with the corrupt practices of England's class-based society. A fallen monarchy was contrasted increasingly in American political rhetoric with a virtuous citizenry. The social hierarchies found at home and validated by the English common law similarly offended Americans. Aided by the growth of commercialism in the mid-eighteenth century, a strong and persistent body of thought grounded in the broad principles of contractualism soon emerged and grew. Free to enter into social and business relationships, the average white adult worker was now unhindered by the English master/servant law.1 Such an argument takes issue with some of the leading practitioners of the labor law history. These scholars have gone far to frame the debate about law and labor in the nineteenth century. In their works, two fundamental points stand out. First, American law governing labor relations in the early republic was steeped in the hierarchies and status designations supplied by the English common law of master and servant. Second, the legal terminology of master/servant expressed the presence, within legal circles at least, of a fundamental inequality between those who hired and those who worked.2 In her provocative work on this subject, Karen Often has argued that the legal classification master/servant marked a form of belated feudalism. Challenging more pluralistic models of the American polity, her view is that courts imposed and enforced a preliberal order in the workplace. The origins of this order are lost in the English Middle Ages. By a continuous and uninterrupted line of descent the status-bound and hierarchical law of master/servant wound its way from Tudor England across the Atlantic, and through time it persisted into the late nineteenth century.3 Christopher Tomlins offers a different interpretation of the master/servant relationship. Americans in the early republic, he argues, bristled at the use of the word servant to describe working people who were not black slaves. Yet, popular attitudes were one thing; legal discourse was quite another. According to Tomlins, the early decades of the nineteenth century saw the language of master/servant deployed by courts to establish employment as a legally asymmetrical relationship in which the parties coexisted under conditions of structured inequality. During these formative years, Tomlins contends that the courts downgraded the rights of all workers by fashioning a new generic law of master and servant, encompassing all employees rather than the carefully delimited categories of servants to whom colonial statutes had been addressed.4 These two renderings of the master/servant relationship in nineteenthcentury American history view courts as antiliberal and particularly hostile to the interests of working people. These illiberal attitudes were widely accepted even after the Civil War, when influential legal commentators, Thomas Cooley and Christopher Tiedman, spoke out against legislative interventions while courts increasingly endorsed the use of injunctions against labor organizations. By incorporating the antebellum era into this interpretative framework, Orren and Tomlins have offered a and stimulating thesis, which if accepted, suggests that the restrictive course of American labor law was shaped by courts and took root in the early years of the Republic.5 My aim in this article is to provide an alternative view of American labor law in the early republic. It contends that voluntaristic principles informed American labor law and set it apart from the monopolistic and feudally inspired English law of master/servant. The thrust of this and yet not fully formed branch of law was a commitment to free labor for the individual white adult worker. Such an argument is not without historical contradictions, however. …
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Jan 7, 2003
Isabella Grishkan + 3
Open Access
