The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870

By Robert J. Steinfeld

Examining the emergence of the modern conception of free labor--labor that could not be legally compelled, even though voluntarily agreed upon--Steinfeld explains how English law dominated the early American colonies, making violation of al labor agreements punishable by imprisonment. By the eighteenth century, traditional legal restrictions no longer applied to many kinds of colonial workers, but it was not until the nineteenth century that indentured servitude came to be regarded as similar to slavery.

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Feb 1, 2014
• ISBN: 9781469616391

Book preview

The Invention of Free Labor

Studies in Legal History

Published by the

University of North Carolina Press

in association with the

American Society for Legal History

EDITOR

Thomas A. Green

EDITORIAL BOARD

John D. Cushing

Lawrence M. Friedman

Charles M. Gray

Oscar Handlin

George L. Haskins

J. Willard Hurst

Stanley N. Katz

S. F. C. Milsom

L. Kinvin Wroth

The Invention of Free Labor

The Employment Relation in English and American Law and Culture, 1350–1870

Robert J. Steinfeld

The University of North Carolina Press

Chapel Hill and London

© 1991 The University of North Carolina Press

All rights reserved

The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

Manufactured in the United States of America

95 94 93 92 91 5 4 3 2 1

Library of Congress

Cataloging-in-Publication Data

Steinfeld, Robert J.

The invention of free labor : the employment

relation in English and American law and culture,

1350–1870 / by Robert J. Steinfeld.

p. cm. — (Studies in legal history)

Includes bibliographical references (p. )

and index.

ISBN 0-8078-5452-2 (alk. paper)

1. Master and servant—United States—History. 2. Indentured servants—Legal status, laws, etc.—United States—History. 3. Labor contract—United States—History. 4. Master and servant—England—History. 5. Indentured servants—Legal status, laws, etc.—England— History. 6. Labor contract—England—History.

I. Title. II. Series.

K888.S74 1991

346.42’024—dc20 91-11679

[344.20624]

CIP

THIS BOOK WAS DIGITALLY MANUFACTURED.

Contents

Acknowledgments

1 Introduction

2 The Master-Servant Relationship in Early Modern England and the American Colonies

3 Labor Imagined

4 The Freeborn Englishman and the Persistence of Traditional Service

5 The Ambiguous Impact of the American Revolution

6 Working Out the Idea and Practice of Free Labor

7 The Federal Anti-Peonage Act of 1867

Conclusion. Self-Ownership and Self-Government in the Nineteenth Century

Appendix. Habeas Corpus File of Runaway Laborers, Chesapeake and Ohio Canal Company (1829)

Notes

Bibliography

Index

Acknowledgments

I have incurred many debts in writing this book. The original idea for it grew out of a seminar on the history of labor law given by two of my colleagues, Fred Konefsky and James Atleson. The material they put together on indentured servitude intrigued me, and I began to wonder whether the political status of English servants in the seventeenth century, which C. B. Macpherson had written about, might be related to the legal status of colonial indentured servants. Duncan Kennedy’s work on the history of the law of persons provided a number of the basic ideas that guided my further investigations. In the end, I have come to think of this book as a Critical legal history of the master-servant relationship.

Both Fred Konefsky and Duncan Kennedy offered vital encouragement during the years it took to produce the book. Fred Konefsky read the manuscript in its entirety on more than one occasion and made numerous helpful suggestions. He also supplied a constant stream of bibliographical references. Over the years, an ongoing conversation with Guyora Binder and Errol Meidinger has been a crucial source of intellectual stimulation, and I am grateful to both for sharing their ideas and insights. I wish to thank Dirk Hartog and G. Edward White for the generous time each devoted to various versions of the argument. Their suggestions greatly improved the resulting book. Wythe Holt brought a number of errors in earlier drafts to my attention. Tom Green’s editorial prodding was crucial in the production of the final manuscript. James Atleson, John Henry Schlegel, Tom Headrick, Al Katz, Betty Mensch, and Alan Freeman all contributed to creating a law school in which unorthodox approaches are received with enthusiasm.

Edmund Morgan, Eric Foner, and Mark Tushnet made valuable suggestions at an earlier stage. Christopher Tomlins has offered friendly criticism on many occasions, driving me to dig deeper in the evidence and to sharpen my arguments. Douglas Hay was good enough to share his manuscript on penal sanctions for contract breaking, which added greatly to my understanding of English practice in the eighteenth and nineteenth centuries. Farley Grubb generously made his manuscript on the disappearance of immigrant servitude available to me, and it supplied crucial missing pieces of the puzzle.

Throughout, Nina Cascio and Marcia Zubrow have cheerfully supplied answers to my endless bibliographical inquiries. They have also provided expert guidance in negotiating the wonderful rare book collection at the University of Buffalo’s law library. Jennifer Bayles gave unstintingly of her time and editorial expertise as I worked to complete this project, and I am deeply grateful. Finally, I’d like to thank Charlotte Sibley, Lewis Liebler, George Zimmerman, and Sandra Ansley for providing the dedicated research assistance without which this book could not have been completed.

The Invention of Free Labor

Not ideas, but material and ideal interests, directly govern men’s conduct. Yet very frequently the world images that have been created by ideas have, like switchmen, determined the tracks along which action has been pushed by the dynamic of interest. From what and for what one wished to be redeemed, and let us not forget, could be redeemed, depended upon one’s image of the world.

—MAX WEBER, From Max Weber: Essays in Sociology

In the course of human history there have been two polar extremes in the idiomatic handling of the coercive aspect of power. One has been the tendency to acknowledge human force openly, then to humanize it by the use of various social strategies such as fictive kinship, [and] clientship. … The other extreme has been the method of concealment, in which coercion is almost completely hidden or thoroughly denied. Indeed, it is even presented as the direct opposite of what it is, being interpreted as a kind of freedom.

Marx has given us our basic insight into the two extremes by contrasting the direct personal dependence of feudal societies with the fantastic form of concealment of real power in capitalism brought about by the mediation of property and the fetishism of commodities. I shall call the two polar types the personalistic and the materialistic idioms [of power]. In the personalistic idiom power is direct—or nearly so—and is frequently transparent. Individuals are directly dependent on others.…

Quite the opposite is true of the materialistic idiom. Here, as in the most extreme case of modern capitalism, relations of dependence are disguised. [] … The power relationship is no longer viewed as power over persons but as power over commodities. … [P]ower over individuals is increasingly mediated through power over goods until the point is reached where the basic power relationship is largely, though never completely, obscured.

—ORLANDO PATTERSON, Slavery and Social Death

Chapter 1 Introduction

Most histories of the English and American employment relationship¹ operate from the implicit assumption that free labor has always represented the norm in the wage-labor relationship. Unfree labor, it is widely recognized, of course, occupied a central position in the medieval labor system. When villeinage grew rare in England, however, and the provision of labor came to be based primarily on consensual transactions in which individuals exchanged their labor for wages or other compensation, free labor, it is commonly assumed, was the form these transactions took. Over the last decade, to be sure, a number of historians have demonstrated just how quantitatively important one form of contractual but unfree labor, indentured servitude, was in colonial America. Even their work, however, has not substantially altered the sense that indentured servitude was somehow special, limited, and a deviation from contemporary norms. English labor of the period was heavily regulated; the public authorities, for example, were entitled to fix wages. Nevertheless, the ordinary wage work of the time is thought to have been nothing like indentured servitude. Today, the history of the labor relationship in England and America continues to be shaped by a basic image that has rarely been called into question: pockets of indentured servitude artificially created and maintained in a landscape in which contractual labor was otherwise free labor.

The argument and evidence presented in the following pages overturn this implicit framework. They show that in seventeenth-century England, the nearly universal legal form of consensual manual labor was not free labor but unfree labor. English law made the violation of most labor agreements punishable by imprisonment: a worker who agreed to work for a period of time or to perform some particular piece of work in exchange either for wages, for training, or for transatlantic transportation expenses was subject to imprisonment for failure to fulfill the agreement. Workers could be imprisoned until they were willing to return to their employers to complete the service they had agreed upon. These legal restrictions on departure applied not only to servants and apprentices but also to laborers and artificers. The early law of the American colonies followed the basic pattern of this English law in making labor agreements specifically enforceable or in subjecting workers to criminal penalties for failing to perform their undertakings.² In the seventeenth century, English and American law did not unambiguously recognize any form of free labor in the modern sense of the term. Free labor as a self-conscious set of legal and social practices simply did not exist.

In the seventeenth century, unfree labor represented the normal legal form that contractual labor took in the Anglo-American world. Free labor—labor undertaken under legal rules that did not give employers either the right to invoke criminal penalties for departure or the right to specific performance—represented, when it first appeared in the American colonies early in the eighteenth century, a special rather than universal form of contractual labor. For more than a century thereafter, free labor continued to be restricted to certain forms of the labor relationship. Not until the nineteenth century did it become the paradigm for normal employment.

Early modern English and American labor law gave employers considerable legal control over the persons of their workers. Contemporaries conceived of this legal control in two distinct ways. On the one hand, they looked on it as a kind of jurisdiction or personal government that one person exercised over another. On the other, they viewed it as a kind of property that employers enjoyed in the services of their workers, a legal right to the exclusive use and enjoyment of their workers’ energies for the period or purposes specified in the agreement. These two ways of understanding a master’s legal authority over his workers held different implications for the future of the labor relationship. Beginning in the second half of the seventeenth century, the tradition that viewed the master’s legal control as property became an important constituent of the new market society just then emerging.

It is commonly assumed that the development of market society in England (and the American colonies) during the eighteenth century inevitably entailed the elimination of unfree labor. This book argues, by contrast, that in a social universe composed of individuals who freely buy and sell goods, it is possible for the transaction in which one individual sells the property in his labor to another to be conceptualized and legally constructed in a number of different ways. Such a transaction, for example, may be understood and legally constructed as a form of lease giving the lessee (employer) the enforceable legal right to possession and control of the leased property for the term of the lease. Or it is possible to construct such a transaction as a purely contractual relationship, in which the parties have specific performance or criminal penalties among their legal remedies for breach. The core assumptions of individualist market society—that the social universe is composed of numerous, independent individuals all of whom have a natural property in their own persons and all of whom are naturally disposed to exchange their goods with one another—leave ample scope for different legal and social specifications of what the sale of labor by one individual to another will entail.³ In themselves, these core assumptions do not require a particular definition of that transaction, such as the one associated with free labor.

By the eighteenth century, contractual unfree labor had in fact come to be viewed in the Anglo-American world primarily as the product of a voluntary bargain between two individuals. Rather than a medieval relic doomed to inevitable extinction by the spread of markets, contractual unfree labor had come to represent one way of operationally defining a regime of property and contract in labor. In England, the medieval tradition of prohibiting workers from leaving the work they had agreed to perform was recast. New statutes were enacted at intervals over the eighteenth century making breaches of labor contracts punishable by imprisonment, and throughout the century English workers who departed from their work were brought before local magistrates and imprisoned for violations of their agreements. In the American colonies, indentured servitude persisted as a common form of the sale of labor by one individual to another. Less and less did these legal forms of the employment relationship rest on antiquated medieval assumptions that labor was a resource of the community. More and more they rested on a particular legal construction of the idea that individuals owned themselves and were free to dispose of their energies in the marketplace. Over the century and a half following the English Revolution, the rights to performance that masters had long enjoyed were reconceived as the product of a transaction in which one perfectly free individual sold the property he held in his own energies to another individual for a term or for a particular purpose. Thereafter, that property was the employer’s, not the worker’s, for the term or purpose stipulated.

Other legal and social specifications of a regime of property and contract in labor were possible, of course, and free labor was one of these. But as such, it was no less artificial than the others. It merely represented the choice of a particular set of legal rules that withheld from masters certain remedies for breach they might otherwise have enjoyed, as part of a particular definition and legal construction of a transaction between two individuals. One legal specification of the transaction or another had to be consciously chosen since the generic sale of labor by one individual to another has no intrinsic legal definition of its own.

Because the qualities of the relationships produced under these alternative sets of legal rules were so different, it has been assumed that unfree contractual labor and free labor continued to be rooted in the logic of two quite different social and economic systems, one in medieval economy and society, the other in market economy and society. By the eighteenth century, on the contrary, the substantially different qualities of the two forms of contractual labor were the result primarily of the alternative legal incidents incorporated into the conveyance of property in labor. A few changes in the legal incidents by which such a transaction is operationally defined may completely transform the resulting relationship between the parties. Merely by making particular legal remedies available to masters, or by not making them available, a regime of property and contract in labor can produce institutions as different as indentured servitude and free labor.

When free labor first began to appear in the American colonies early in the eighteenth century, it did not displace indentured servitude. Rather, the two forms of contractual labor flourished alongside one another. A regime of property and contract in labor had come to be defined in the eighteenth-century colonies by these two alternative legal forms. Neither was considered the natural form of the labor relationship; both were equally norms for contractual labor in this period. The two merely represented alternative legal expressions of the idea that individuals owned and could freely sell the property in their own energies. In England in the same period, contractual labor was normally unfree labor. Most manual wage workers continued to be subject to criminal punishment for failure to perform their agreements. Workers could be committed and recommitted to jail or to the house of correction until they were willing to perform the service they had agreed upon. A definitive selection between these alternative ways of defining a regime of property and contract in labor did not take place either in England or America until the nineteenth century. In the end, it was not the inexorable logic of the market but a complex process of contingent social, cultural, and economic struggle in each place that led to the collective repudiation of unfree contractual labor.

In America, the last stages in this process occurred during the early decades of the nineteenth century. From its inception, indentured servitude had primarily been considered a form of contractual freedom. Following the American Revolution, however, its history became entangled with American efforts to abolish black slavery. Within a short time, Americans began to think about indentured servitude quite differently, as a form of involuntary rather than voluntary servitude and as essentially indistinguishable from slavery. Only after contractual servitude had been redefined in this way, surprisingly late in the game, did it begin to run directly afoul of the centuries-old English, and later American, antislavery tradition. In the wake of the redefinition of contractual servitude as a form of involuntary servitude, free labor gradually assumed its position as the sole legitimate form of the employment relationship among white adults. Forms of labor like indentured servitude came to be regarded with deep suspicion, and for the first time, free wage labor began to emerge as the unregulated, natural form of the employment relationship.

The argument of this book also bears on another basic historiographical issue. One tradition of historical writing has customarily portrayed the history of England and America as a story of the growth of personal liberty. Work in this tradition generally emphasizes the repressive side of medieval legal and political arrangements, celebrates the various struggles for liberty that took place over the centuries, and concludes by applauding the modern liberal achievement of individual legal and political rights. Other historiographical traditions have offered a quite different picture of the trajectory of Anglo-American civilization. Before markets came completely to dominate English social and economic life, and in particular before the commons were enclosed, the laboring poor ordinarily enjoyed some access to land. Access to land guaranteed them a measure of personal autonomy and economic independence from the wealthy. But by the end of the eighteenth century, succeeding enclosure movements had reduced the laboring poor to the status of propertyless wage workers. Their lives became increasingly wretched as they were subjected to harsher and harsher forms of economic exploitation. Some historians of colonial American society have detected a similar process at work in this country from the mid-seventeenth to the end of the eighteenth century. In New England, and in the urban colonial centers of New York and Philadelphia, tax and probate records have revealed a significant growth in the number of the poor and landless during this period. Without access to land or other productive capital of their own, members of this expanding segment of the population could not hope to enjoy the economic independence of their seventeenth-century forebears. By the end of the eighteenth century, the propertyless, especially in urban centers in America, constituted a considerable pool of economically vulnerable free-floating wage workers.

This book offers a different, more mixed picture of both earlier and later periods. By the middle of the fourteenth century, wage labor was common in England, though a good deal of it was performed on a casual, intermittent basis by people who also had some access to land. The English laboring poor of this period, however, were subject to an oppressive regime of legal regulation. The statutes of laborers and later the Statute of Artificers, which were enforced throughout the realm, represented a pervasive form of legal intervention in the lives of ordinary laboring people. A much less comprehensive system of legal regulation of employment was imported into the American colonies in the seventeenth century. But in institutions like indentured servitude, the laboring poor continued to be subjected to harsh forms of legal coercion. After the American Revolution, wage workers mounted a broad struggle and were ultimately successful in redefining the labor relationship as a relationship between juridical equals. By the 1820s, adult indentured servitude had come primarily to be viewed as involuntary servitude and by the 1830s had disappeared in the United States. These developments were genuinely liberatory, and whig historians have been right to portray them in that way. But they are only half the story.

The other half of the story is that the employment relationship continued to give employers enormous economic power in most cases over those who worked for them. Law continued to play an important role in this new regime of labor. In effect, the direct legal control that employers had previously enjoyed over employees gave way to another form of legal regulation that offered workers greater formal autonomy but continued indirectly to place them at the disposal of those who owned productive assets. Direct legal control gave way to indirect control. This story is neither one of a preindustrial golden age of wholeness and autonomy giving way to an era of nightmarish commercial and industrial exploitation nor one of a repressive medieval civilization giving way to a world of free markets, personal liberty, and political democracy. It is, rather, a story of one set of historical practices with one mix of kinds of freedom and unfreedom for laboring people replacing another set of historical practices with a different mix of kinds of freedom and unfreedom. Achieving legal autonomy represented a real gain for laboring people, but it also helped to obscure the systemic ways in which law continued to contribute to their oppression through the operation of the ordinary rules of property and contract in a world in which productive assets were unequally distributed.

Reversing Perspectives: Using Indentured Servitude to Rethink the History of the Employment Relationship

The argument of this book grows out of a particular approach to the history of the employment relationship. The normal field of perspective is reversed here. Indentured servitude is placed in the foreground rather than the background, and ordinary employment is examined from the resulting vantage point. In what relationship did indentured servitude stand to ordinary employment at different times? Did indentured servitude always represent the binary opposite of normal employment, as it does today? Or was there a time when it was considered to be among the practices that comprised normal employment?

This way of approaching the subject rests on the view that contractual servitude, which is ordinarily taken to be of only subsidiary importance in the history of employment, actually played (and continues to play) a structurally integral role in defining the shifting content and boundaries of normal contractual employment. The modern practice of free labor is defined as much by the institution of indentured servitude, with which it is contrasted, as by the normal labor practices it is taken to include. To understand modern free labor, it is not sufficient to know that it includes work voluntarily undertaken, for a specified period or purpose, in exchange for wages or other compensation, or even that it also stands in absolute contrast to slavery. If this were all we knew about free labor, it would not be clear whether a practice like indentured servitude constituted free labor. In indentured servitude, individuals voluntarily contract to serve for a term in exchange for compensation—transportation expenses and freedom dues. Does this practice constitute free labor because it is voluntarily undertaken, for a prescribed term, and compensated? Or does it amount to slavery because the work can be legally compelled? Or does it constitute some third category? The modern answer is that it constitutes a form of slavery. This answer, however, depends upon a particular scheme of understandings that ignores the characteristics indentured servitude shares with free labor—contractual freedom, limited term, compensation—and that classifies it with slavery because of the legal compulsion both involve. In the most basic way, the modern idea and practice of free labor is defined by its relationship to contractual servitude—by its contrast to all forms of voluntary, compensated, contractual labor in which performance may be legally compelled—as well as by its contrast to slavery.

Whether by contrast, as in the case of modern free labor, or by inclusion or variation, as in the past, the practices of contractual servitude played a basic role in defining normal employment. This book offers an account of the changing nature of normal employment by describing its changing relationship to contractual servitude. Reversing perspectives in this way creates a powerful tool for illuminating the different sense of normality of an earlier era.

The basic facts surrounding the use of indented labor in this country are well established. Beginning with the first settlements, indented labor was used widely in the American colonies. One prominent historian of the institution has estimated that after the 1630s no fewer than one-half and possibly as many as two-thirds of all white immigrants came to the colonies as bound laborers.⁴ As early as the first half of the seventeenth century, servant legislation was already on the statute books in a number of colonies. During the early colonial period, indented labor was used throughout the colonies. But by the middle of the eighteenth century, it had come to be concentrated mainly in Pennsylvania and the Chesapeake region.⁵ Mass importations of European servants continued intermittently well past the American Revolution, until approximately 1820. Over the following decade and a half, white adult indentured servitude gradually disappeared in this country.

The bargain in classic indentured servitude was simple enough. Immigrants signed labor contracts (indentures) committing themselves to serve other persons for a term of years. In exchange, they had their transatlantic transportation expenses paid and were normally entitled to freedom dues on the completion of their service. Some agreements even called for wages to be paid during the term. Whether servants signed indentures while still in Europe or only after arriving in this country, once indentures had been signed, all servants were bound in the same way.⁶ Under colonial, and later state, servant statutes, an elaborate set of provisions safeguarded the master’s right to the servant’s labor during the term of service. These statutes established procedures by which masters could recover runaway servants; subjected runaways to additional servitude, in some cases to multiple additional days of service for each day’s absence; and authorized masters to administer corporal punishment to disobedient servants. A number of jurisdictions prohibited servants from marrying without their masters’ consent.⁷

Although by the last quarter of the eighteenth century, indentured servants constituted no more than a small fraction of the total labor force in any colony,⁸ thousands of servants were still being imported into the country.⁹ Large numbers of servants continued to be imported as late as 1819.¹⁰ Between 1773 and 1776, nearly 50 percent of the English and Scottish immigrants who came to this country came as indentured servants or redemptioners.¹¹ As late as 1785–1804, 45 percent of all German immigrants who arrived in Philadelphia arrived as redemptioners.¹² But in 1820, after nearly two centuries, the mass importation of indentured servants and redemptioners abruptly came to a halt.¹³ From 1821 to 1831 the names of only twenty immigrant servants were recorded in the German servant register in Philadelphia. Thereafter, European immigrant servitude gradually disappeared. By the mid-1830s no European indented servants remained in the United States.

That Americans in the late eighteenth century did not view indentured servitude in the modern way, as a form of slavery, becomes clear from their actions in the decades following the American Revolution. By the last quarter of the eighteenth century a broad antislavery movement had developed in New England and the mid-Atlantic region. By 1804 slavery had been abolished throughout New England, and Pennsylvania, New York, and New Jersey had all adopted gradual emancipation legislation. Yet during these same decades, no similar attack was ever mounted against indentured servitude. To be sure, unscrupulous practices in the servant trade were the subject of frequent criticism, and a number of immigrant fraternal organizations agitated to amend existing servant statutes to add greater protections for immigrants. But there was no organized call for the abolition of indentured servitude as there was for the abolition of slavery.¹⁴ Indeed, statutes passed after the Revolution uniformly affirmed the legality of indentured servitude.¹⁵

The Revolutionary War temporarily interrupted the flow of servants from Europe. But no sooner had the war ended than Americans resumed their trade in European servants, importing substantial numbers in the years following 1783.¹⁶ Beginning in the 1790s, a series of European wars again reduced the flow of servants somewhat initially¹⁷ and more sharply after 1807,¹⁸ but as soon as these wars were over, Americans began importing servants again. The servant trade revived in 1815 and remained vigorous down to 1820.¹⁹ As late as the 1820s, American newspapers continued to carry personal advertisements announcing rewards for the return of runaway servants.²⁰

The differences in American responses to slavery and indentured servitude during these decades produced some odd situations. In 1808, Congress prohibited the further importation of black slaves into the United States. But at least until 1820, large numbers of European servants were still being legally imported into Baltimore and Philadelphia and sold aboard ship to Americans for multiyear terms of servitude. In August 1817, a Mr. Samuel Breck of Philadelphia recorded in his diary that he had recently gone on board a ship from Amsterdam seeking to purchase servants. I saw, he wrote, the remains of a very fine cargo, consisting of healthy, good-looking men, women and children. I purchased two French Swiss servants who came from Lausanne in Switzerland. … I gave for the woman seventy-six dollars, which is her passage money, with a promise of twenty dollars at the end of three years if she serves me faithfully; clothing and maintenance of course. The boy had paid twenty-six guilders toward his passage-money, which I agreed to give him at the end of three years; in addition to which I paid fifty-three dollars and sixty cents for his passage, and for two years he is to have six weeks’ schooling each year.²¹

The views of Americans of the Revolutionary generation were obviously different from modern views. Americans of this earlier period distinguished indentured servitude from slavery and seem to have considered it a much less objectionable practice. Understanding their reactions requires that we begin to think differently not only about indentured servitude but about the employment relationship generally in this period. If many Americans outside the South considered slavery but not indentured servitude deeply illegitimate, their views reflected a different sense of what practices constituted normal employment. For these Americans, the fact that immigrant servitude was based on a contract to which both parties had agreed placed it in a different category from slavery. It occupied a cultural space that has lost practically all its meaning: voluntary servitude. From their perspective, this category of labor was a great deal closer to ordinary, voluntary employment than it is today. Simply put, the modern conception and practice of free labor did not then exist. It began to emerge only during the early nineteenth century, as the previously separate categories of voluntary servitude and slavery began to collapse into the category of involuntary servitude, and to define by contrast what constituted normal employment—voluntary labor not subject to legal compulsion.

This is a book about the invention of the modern employment relation in the nineteenth century. To understand that development, however, it is necessary to understand a great deal more about the universe of labor from which it emerged. The world of labor that the Revolutionary generation inhabited was a world derived from English labor practices of an earlier era. The English colonists who settled the North American mainland in the seventeenth century brought with them many basic legal features of a labor system that had been in place for centuries. The most significant characteristic of these English and American legal rules, from a modern perspective, is that they subjected manual wage workers, not merely indented servants, to legal compulsion in fulfilling their labor agreements. In the Anglo-American world of the seventeenth century, indentured servitude constituted a variation on normal contractual labor.

Over the following century and a half, labor practices in England and America diverged. While English workers continued to be subject to arrest for leaving their work, by the eighteenth century, the labor agreements of certain American wage workers were no longer enforceable in this way. The remainder of this book is devoted to describing how indentured servitude came to be transformed from a variation on normal employment in the seventeenth century into its antithesis by the middle of the nineteenth century. The next chapter begins this story by describing the medieval and early modern English legal background and the American colonial law that derived from it. It is from this baseline that we will follow the development of modern free labor.

Chapter 2 The Master-Servant Relationship in Early Modern England and the American Colonies

The Contrast between Modern and Early Modern Views of the Master-Servant Relationship in English and American Law

We are accustomed to imagining that the relationship between employer and employee involves nothing more than a contract between juridical equals. In no way is this contract supposed to affect the basic legal or political status of either party. But this way of imagining the employment relationship is relatively new. It is an invention of the nineteenth century, although by the middle of that century it already dominated the way many Americans thought about employment.

By 1850 Americans were characterizing employment in contractarian terms completely familiar to us. But their recent memory of a radically different way of thinking about that relationship was still fresh and was frequently on their minds when they