PART I
CHAPTER 1
In an article bearing on the “legal duties of employer and employed” published in 1893 in the American Law Register, jurist Richard McMurtrie railed against the growing use of the terms “employed” and “employee” to refer to American workers. According to McMurtrie, these terms were too broad and too vague. “A passenger on a ship is the employer of the master, but there is not the faintest resemblance to that of the relationship between master and servant between them,” he explained. Instead, McMurtrie suggested that Americans should retain the words “master” and “servant,” whose meaning was very clear: a servant, he said, was someone whose work was directed by another, which implied legal liabilities for the master. Their relationship arose by contract, and its duration was “at will.” By using terms such as “employee,” McMurtrie contended, Americans risked losing sight of the rights and duties of employers and workers in common law. Lamenting that there should be “something derogatory to recognize the relation of Master or the position of Servant,” McMurtrie denied that there was any “servility imported from the word servant.”1
In fact, McMurtrie had it wrong. A sense of servility was attached to the term “servant” at the end of the nineteenth century. Yet McMurtrie’s lament reflected a confusion that was quite real. Although they had used the term “employee” since the middle of the nineteenth century, Americans— particularly judges—were confounded by its meaning. As the case of James E. Vane, an electrician who filed a lien notice against the Bankers’ and Merchants’ Telegraph Company (BMTC) of New York in October 1884, reveals, the term “employé,” a French import, posed significant interpretive problems to judges. Vane contended that the struggling corporation owed him $16,000 for the work he had done. Yet the receivers of the corporation denied the validity of his claim to a lien on the grounds that Vane was not an “employé,” but a general contractor. Surprisingly, the conundrum posed by the meaning of the term “employé” in law was such that Vane’s legal matter was solved only by a Supreme Court decision five years later, in 1889.2
In the mid-1880s, a skilled worker like James Vane was hardly representative of the American workforce. Tellingly, the amount of the lien he claimed represented a sum of money many American workers would have taken many years to earn. An old-stock citizen in the Midwest, Vane represented that segment of the labor force comprising men who earned a high return for their skill and enjoyed a large amount of autonomy in performing the work they had agreed to do. In many ways, his experience of paid work was comparable to that of the men rolling iron or blowing glass; midway between a craft worker and a small entrepreneur, Vane could claim to be a part of what today would be called the middle class.3
Vane’s decision to turn to the judicial system to vindicate his rights was equally suggestive of his social position. In the waning years of the nineteenth century, few American workers eagerly called on the courts to intervene in their relationship with their employers. Experience had taught them that usually courts did so only at the behest of capitalists and on behalf of capitalism and production. While in Vane’s case no injunction was published against a labor union and no army was sent to crush a worker rebellion, the result was no more satisfactory and every bit as final because the Supreme Court refused to grant him the lien he claimed on the corporation because he was not an “employé.”
Vane’s suit against the BMTC of New York has long been forgotten, but it offers a revealing insight into the history of labor relations at the end of the nineteenth century. Indeed, the debate surrounding the legal meaning of “employé” in turn highlighted the extent to which its social meaning was also uncertain. Peering into obscure cases like James Vane’s, we glimpse the dominant discourse of social harmony that pervaded not only the law but also American thinking about the relation of worker and employer. The confusion over the social meaning of “employé”—which has largely escaped the attention of historians—stemmed from the political values that had facilitated the word’s adoption in American English. More than any other word in the developing lexicon of nineteenth century labor-capital relations, “employé” reflected a refusal to recognize class antagonism in America, where powerful actors—including judges—were determined to affirm the purposive unity of capital and labor.
“A Meaning Not At All Uncertain”
The BMTC was a company for which Vane had installed wires and telegraph poles on an existing line and constructed two others. For this work, Vane had hired several workers and assisted them in person. The company, however, failed to fulfill its part of the contract. It did not furnish the materials, leaving the men Vane had hired without work for some time, but nevertheless requested that the men be kept together during the delay. To be able to proceed with the work, Vane provided the materials himself, and arranged and paid for their freight, although the contract he had signed with the BMTC made no provisions for such expenditures. By September 1884, Vane notified the managers of the company that he intended to seek a lien on the company’s earnings “for the labor performed after the 15th day of June 1884.” Vane filed his complaint in October, and at this time the work was practically done, although he had not finished the connections. In November, he came to an agreement with the two receivers of the company whereby he would finish the connections, allowing the company to use the wires—an agreement that was not meant to contradict his claim to a lien. Overall, Vane claimed that the company owed him $16,000.4
In trying to convince the courts to enforce his lien against the company that had contracted with him, James Vane reflected the political tensions at work in America at the time. While mechanics’ liens already had a long history in the United States, they were an important part of the populist revolt against corporations in the Midwest and in the South and thus provided one of the first attempts to regulate the work relationship in a mature, industrial economy.5 Like the millions of workers, immigrant or not, who supplied the labor sustaining the country’s economic progress, Vane underwent the destabilizing effects of industrial capitalism and its impact on the experience of work.
James Vane’s claim to a lien was premised on an 1877 Indiana law providing that “[t]he employés of any corporation doing business in this State, whether organized under the laws of this State or otherwise, shall be, and they are hereby entitled to, have and to hold a first and prior lien upon the corporate property of such corporation, and the earnings thereof, for all work and labor done and performed by such employés for such corporation, from the date of their employment by such corporation.”6
Whether Vane shared a social and economic position with the workers and farmers who were part of the populist impulse, however, the courts could not say precisely. Because the receivers of the corporation claimed that Vane’s relationship with the company was not that of an “employé,” but a general contractor, the claim was referred to a master, who decided that Vane was indeed an “employé,” and awarded him a lien of $13,771. The circuit court, however, took exception to the report, ruling that Vane’s claim to a lien was groundless, for Vane was a contractor. Vane, the court explained, “was only bound to produce, or cause to be produced, a certain result—a result of labor to be sure—but he was free to dispose of his own time and personal efforts according to his pleasure, without responsibility to the other party.” The court argued that Vane was no “employé” because there was no bond of subordination between him and the corporation. “The employé must have been a servant,” the court went on, “bound in some degree at least to the duties of a servant.” Because Vane organized his work without direct supervision of the person who had hired him, he was not a “servant” at law, hence not an “employé.”7
Other courts disagreed with this interpretation of “employé.” Earlier, in Water Co. v. Ware, the Supreme Court had required that a company be held responsible for damages produced by the workers of a subcontractor. Such workers, the Court had ruled, were indeed “employés” of the company even if they were not servants of it.8 A similar decision suggesting that “employee” was broader than “servant” had been made in 1874 by a New York state court in Gurney v. Atlantic, a case Vane’s attorney cited in his brief. In that decision, the court interpreted an order to “pay arrearages owing to laborers and employés of the company for labor and services actually done in connection with the company” and found the order broad enough to include a lawyer who had done work for the railroad company. In this expansive definition, compensation for professional services, although they were not closely supervised, fell within the ambit of “employé.”9
Sometimes judges simply—and carefully—avoided defining “employé.” The decision of the Supreme Court of Indiana in an 1887 case involving a law punishing embezzlement by an “officer, agent, attorney, clerk, or employe of any person or persons” is illustrative. In this case, the defendant asked the court to invalidate his indictment on the grounds that the lower court had ruled that he was an “employe,” without defining the term. The court, however, dismissed the appeal, contending that “the word employe, although of French derivation, was long since transplanted and adopted as an English, or at least, American, word. In this country it is of such common use that its meaning is not at all uncertain.” Nonetheless it too failed to provide a definition. Six years later, the same court found it much easier to focus on the words “servant, clerk, and agent”—suggesting that the world “employé” covered all three—to determine whether the defendant was guilty under the statute. In the end, the court was content with reaffirming a most equivocal and circular definition of “employee”: “one who is employed.”10
As Richard McMurtrie’s 1894 lament on “employee” reveals, this confusion extended to law treatises and debates in the legal profession.11 In 1895, a leading legal scholar like James Schouler, for example, associated “employees” with “servants.” “Servants,” he explained, were “persons commonly known in popular speech as workmen or employees…. In this case are included day laborers, factory operatives, miners, colliers, and numerous others, of whom nothing more definite can be said than that they are hired to perform services of a somewhat unambitious character.” By way of contrast, another jurist, I. Browne, defined a “servant” as being less inclusive than “employee,” “as including all such employees as are in the exclusive service of the employer and constructively under his supervision, as clerks in stores, operatives in mills, persons employed on public conveyances and the like.”12
In Vane’s case, the Supreme Court did not solve this confusion, offering instead a narrow decision. In his majority opinion, Justice Blatchford noted that the lien covered neither the materials furnished nor the advances of money. It was limited, as he explained, “to the work and labor done by the employés of the corporation.” Comparing the Indiana lien law used by Vane to other lien laws, Blatchford argued that other lien statutes were broader in their coverage. For example, the Indiana law covering miners explicitly covered “the miners and all persons employed in and about the mines,” while the law protecting mechanics covered “mechanics and all persons performing labor.” According to the Court, the language of the Indiana lien statute on which Vane based his claim covered only “the employés of a corporation” and was thus more limited—it did not cover contractors such as Vane.13 Tellingly, a precise definition of neither “servant” nor “employé” was suggested by the Court, which was content with writing contractors out of a statute covering “employés.”14
What, then, was an “employé”? It took the Supreme Court another two years to provide a more specific definition. Once again, the case arose out of a claim to a lien, and once more it bore upon the complex organization of the corporations that came to dominate the American landscape at the end of the Gilded Age—Louisville, Evansville and St. Louis Railroad Co. v. Wilson.15 The Louisville, Evansville and St. Louis Railroad Company was a struggling concern in the highly competitive context of the 1870s and 1880s, when railroad companies were the biggest corporations in the country and tried to consolidate to reinforce and secure their position. To help this company, which could no longer pay for its operating expenses, some of the managers of the railroad decided to advance some money and thus prevent a legal fore-closure proceeding, to no avail. The concern was put in the trust of a receiver, who sold it to a new corporation, namely, the Louisville, Evansville and St. Louis Railroad Company. In the meantime, a judge ordered the receiver to pay “all just claims and accounts for labor material, supplies, salaries of officers and wages of employés that may have been earned or furnished within six months prior to the [time when the concern was put in the hands of the receiver].” Bluford Wilson, an attorney, requested to join the suit against the company on the grounds that he had provided services, helping the company lease engines to another railroad company, and thus came within the ambit of the court order, which covered “employés.” The lower court had agreed, requesting the new company to pay him $7,650 for his services.16
This decision was congruent with the 1874 New York case mentioned below, according to which anyone performing paid services for another was an “employé.” Comparing the two cases, we see the inconsistent use of “employé” by judges and receivers. In the New York case, the receiver was told to pay arrearages to “laborers and employés,” suggesting that “employé” referred to people on the white-collar side of the class line. On the contrary in Louisville, the order referred to “salaries of officers and wages of employés,” suggesting this time that employés were the blue-collar railroad workers.
No sociological consideration, however, led the Court to outline more precisely the contours of the category of “employés.” Rather, Justice Brewer, who would later pen the ruling in the infamous In Re Debs decision, chose to emphasize the need to protect investment and capital: “We would not be understood as asserting, even by implication, that the terms of an order of appointment of a receiver vest in all claimants an absolute right against the security holders.” The first definition of “employé” given by the Court, then, was one that arose from the movement that had grown stronger in the legal world since the creation of the American Bar Association in 1878—the determination to reassert the role of the judiciary in the American system of government and use its powers to protect property and the “use of capital,” as Brewer himself explained in a speech delivered in 1893. As a result, in 1891 the Court defined “employés” as “those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employé.”17
This was a small, but important step. In determining paths of dependency and autonomy in the modern industrial world, the Supreme Court had given “employé” its first concrete technical definition, ending the general confusion over its meaning. The following year, in a similar case, a New York tribunal ruled that a lawyer who had served as the counsel of a railroad and was hired at a salary of $200 per month to provide his services was an “employé” of the railroad company and could claim a lien on the company.18 By 1910, Black’s Law Dictionary defined the relationship in the same terms, although some hesitancy still transpired: “As generally used with us, though perhaps not confined to any official employment, it is understood to mean some permanent employment or position. The word is more extensive than ‘clerk’ or ‘officer.’ It signifies anyone having charge or using a function, as well as one in office.”19
Yet this confusion remains puzzling. Why did judges take so long to define “employé,” when the legal meaning of terms such as “servant,” “clerk,” or “agent” was so well established? And how can we explain that “employé” seemed to be purposefully devoid of social connotations, referring to white-collar and blue-collar workers alike, at a time when class formation was clearly under way in the United States?
Operatives and Professionals
Although it is commonplace today, the term “employee” was not part of the everyday language of American society in the antebellum era. While “employ” and “employment” appeared frequently, there were other words more commonly used to refer to those who furnished the country’s manual but necessary labor. “Mechanic,” “workingman,” “journeyman,” and “laborer” adequately conveyed the social position of workers in the young republic, one that did not derive from tensions inherent in the wage relationship.
At the turn of the century, journeymen and artisans inhabited a world based on household production, a preindustrial setting in which master craftsmen, journeymen, and apprentices often worked and lived together. While this organization of production did not prevent tensions (journeymen created unions as early as the 1790s), it was based on a cooperative culture that revolved around the acquisition of skills. Learning a trade opened the door to advancement and independence, and both the apprentice and the journeyman could work toward and look forward to becoming independent artisans themselves through what was a predictable, community-based life cycle. Indeed, in the young republic, the artisan, like the farmer, was a social figure embodying a freedom that combined a strong sense of individual proprietorship and a sense of interdependence coming from a local, moral economy.20
“Employé,” which entered Webster’s Dictionary first in 1849, did not convey these social assumptions, and its emergence in the American language no doubt owed to its lack of artisanal connotations—an important element in a country transformed by the industrial revolution. In 1849, “employé” was simply defined as “someone who is employed,” a cryptic explanation that the reader might elucidate by looking up “to employ”: “1. To occupy the time, attention and labor of, to keep busy, or at work, to use. 2. To use as an instrument or means. 3. To use as materials in forming anything. 4. To engage in one’s service. To use as an agent or substitute in transacting business. 5. To occupy, to use. To apply or to devote to an object; to pass in business; as to employ one’s time—to employ one’s self, is to apply or devote one’s time and attention, to busy one’s self.”21
“Employé” (“employee,” according to the dictionary, was not accepted yet) thus did not speak to any social condition or any economic relationship— rather, it denoted an individual situation, the fact that someone was “used.” One might employ someone else’s help just like someone might employ a tool or a method, or simply one’s self. In English as in French, the roots of the word “employé” in the Latin implicare ran deep. Employment was first and foremost “usage.”
But this “usage” was not restricted to manual work, and implied no lack of dignity. In 1890, the report of the eleventh census provided a clear picture of the growing number of Americans who did not work independently: the “Employés and Wages” section offered a table titled “Total Employés and Number and Percentage of Males, Females and Children.” Their number had risen from 957,059 in 1850 to 2,053,996 in 1870 and to 4,470,884 in 1890. From 1880 to 1890, the increase was staggering, over 65 percent. Importantly, the report further divided the category “employés” into five “classes”: (1) operatives, engineers, and skilled workers, including superintendents; (2) firm officers; (3) clerks; (4) laborers and unskilled workers; and (5) piece workers. Farmworkers and domestic workers were not included—an exclusion that would prove long-lasting.22
“Employe” thus cast a broad sociological net over the American workforce. In fact, it is striking that the term was adopted in American English during a period—roughly the end of the Civil War to the early twentieth century—that witnessed two profound evolutions. The first was the growth of large-scale enterprises and the concomitant need for white-collar workers to assume the bureaucratic tasks that made it possible to coordinate production. While this meant a development of a stable work relationship in the office, many skilled and unskilled workers, by contrast, experienced the irregular, seasonal aspects of labor and were forced to go from town to town to find the means to provide for themselves; as a number of historians have noted, that period was also the golden age of “tramping.”23 At the turn of the century “employé” might have been used to refer to all these social worlds and experiences of work, although, as a number of scholars have argued, class distinctions between manual and nonmanual workers were increasingly drawn even in the antebellum period.24 By the end of the century, American dictionaries gave it a very broad definition—“one who works for an employer; a person working for salary and wages.”25
This classless dimension was most visible in language: as the Centennial Dictionary explained in 1890, a sense of respectability attached to “employ” that did not exist in “hire”: “Hireand Employare words of different meaning. To Hire is to engage in service for wages. The word does not imply dignity. It is not customary to speak of hiring a teacher or pastor. We hire a man for wages; we employ him for wages or salary. To employ is thus a word of wider signification. A man hired to labor is employed, but a man may be employed in a work who is not hired.” The concomitant displacement of hireling by employee was thus no mere linguistic refinement—in calling manual workers “employees,” the American language bestowed on them a respectability that bridged social classes.26
At this point, we can understand much better why James Vane believed that he could stake a claim to be an “employee.” This generic term simply referred to the fact that someone provided labor or services and might be a professional or a skilled mechanic working without direct supervision as much as a manual worker. As Vane’s attorney noted in his brief, “The word [employé] has recently come to us from a foreign tongue, but receives a broader meaning here than it has in its natural home. Its brevity has led to its adoption in our tongue as it comprehends many classes of people which otherwise we must name respectively.” Vane could indeed claim to be an “employé.”27
The sense of dignity that attached to “employ,” however, requires additional investigation. Looking at the history of “employé” in France, Great Britain, and the United States provides a brief but important glimpse at the political assumptions that underwrote the all-inclusive social character of “employé” in the United States. This expansive definition, which included all Americans at work, was also a political construction rooted in opposition to class antagonism.
From France to Great Britain and the United States: The Many Worlds of “Employé”
In France, “employé” originally referred to workers employed by the state, particularly those whose work was routine and did not imply the use of judgment, as opposed to the “commis.” It did not apply to manual workers, who in the nineteenth century were still expected to carry a livret, even though bound labor had been abolished at the time of the Revolution. In the mid-nineteenth century, however, “employé” was given a much wider—albeit abstract—definition in the work of liberal political economists known as the “laissez-faire ultras” who sought to promote free trade in the Third Republic and emphatically denied the main claim of radical movements of the time— that the wage relationship was inequitable. “Les fonctions du maître et de l’employé sont réglées par un contrat, c’est à dire un acte de la volonté libre de l’un et de l’autre [the rights and duties of the master and the employee are fixed by contract, that is, a voluntary act on both sides],” Courcelle Seneuil explained in 1867 in his Manuel des affaires, while his fellow ultra-liberal Frédéric Bastiat sang the virtues of the division of labor in a book aptly titled Harmonies économiques (Economic Harmonies). It was at that time that “employé” was paired in French with “employeur,” a term liberals deemed more adequate than the traditional “patron,” for it conveyed more clearly the idea of freedom and the lack reciprocal obligations between the “patron” and the “ouvrier.”28
“Employ” migrated across the English Channel very early on, and as in France, the term strongly connoted the idea of freedom in the work relationship. In Customs in Common, E. P. Thompson recounts an encounter, early in the eighteenth century, between a justice and a local journeyman weaver who was accused of neglect of duty:
Justice: Come in, Edmund, I have talk’d with your Master.
Edmund: Not my Master, and’t please your Worship, I hope I am my own Master.
Justice: Well, your employer, Mr. E________ the clothier; will the word employer do?
Edmund: Yes, yes, and’t please your worship, anything but master.29
Both the judge and the journeyman interpreted employer and master to convey opposite meanings when it came to the freedom of the worker. For Thompson, this was the sign of changing social relations, a symbol of the decline of hierarchical relations and the rise of free labor as the basis of a new social order. To use another example, prosecutors in a late eighteenth-century North Carolina case explained that “the mechanic to whom we send our job is not our servant…. There is not authority on one side, and subjugation on the other. His time is his own, not ours. He may postpone work to make room for another’s.” Such a worker, the legal historian Christopher Tomlins tells us, was said to be “employed.”30
Yet if we follow the thread of language, we see that the path to freedom for British workers was actually as tortuous as for French ones. “Employé” was used in Great Britain in the nineteenth century, but interestingly that term was not used to refer to manual workers before the beginning of the twentieth century. As in France, “employé” referred only to white-collar workers, clerks, managerial workers, and professionals, excluding from its purview all the workers who were still subject to the strictures of Master and Servant Law, under which breach of service was a felony. Indeed, the rising demand for freedom identified by Thompson was actually largely contained over the eighteenth century as the British Parliament enacted laws that returned the work relationship to the previous model of authority. The Master and Servant Law was not abolished until 1875, and its legal influence obtained long afterward through the disciplinary powers given to employers and the duty of obedience bestowed on workers. What characterized the “employés” in Great Britain, then, was the capacity to sign a contract of employment, a freedom that set them apart from manual workers, many of whom did not have the right to vote before the 1867 and 1884 reforms and were seen as an unprovided class. Tellingly, it took the rise of the welfare state and Beveridge’s vision of a new social order in the twentieth century to fully bring the British industrial worker safely under the purview of “employee.”31
The British case is quite illuminating because in the United States, unfree labor was abolished (with the obvious exception of slavery) very early on, in the 1820s, as the Supreme Court moved against the system of indentured servitude.32 In 1849, the liberal Philadelphia Ledger, the first penny paper of the nation, captured the liberal individualism that was developing in America, paving the way for the adoption of “employed” and then “employé(s)” as generic terms: “A compromise between employer and employed. In other words, a contract between two free contracting parties. This is precisely where the law must leave it under a free government. Compulsion upon either is a violation of natural right. Competition among employers will raise wages, and competition between employed will depress them. Yet competition must be free to both, for it cannot be restrained without violation of natural right.”33
Such a contractual reading of the wage relationship was at odds with the republican persuasion that still dominated the nation thirty years earlier. Whether it came through a Jeffersonian rejection of the wage system or through a defense of workingmen’s rights to combine, as in the streak of cases that led to Commonwealth v. Hunt (1842), American Republicanism had woven tropes such as public interest, virtue, and independence into its definition of free labor, none of which was present in “employé,” which symbolized the ascendency of a free-market-based definition of the rights of the worker and implied that the wage relationship had become respectable. Consider, for example, this famous comment made by a Massachusetts congressman ten years later during the state’s constitutional convention: “In a free country like ours employment is simply a contract between parties having equal rights. The operative agrees to perform a certain amount of work in consideration of receiving a certain amount of money. The work to be performed is, by the contract, an equivalent for the money paid. The relationship, when properly entered into, is therefore one of mutual benefit. The employed is under no greater obligation to the employer than the employer is to the employed…. In the eye of the law, they are both freemen, citizens having equal rights and brethren sharing a common destiny.”34 Over forty years later, the New York Times illustrated the social and cultural change that had attended the linguistic evolution from “employed” to “employé” and “employee,” emphasizing the logic of contract that undergirded it: “Why should the French word employé be so much used when we have at hand the English form of the same word? Employee is surely the correlative of employer. When we want the correlative of examiner we say at once examinee, and so in analogous cases, licensee, assignee, addressee, consignee, mortgagee.”35
Such paeans to the powers of individualism were a fitting expression of Marx’s lament that “Liberty, Equality, Property and Bentham” reigned over the industrial labor market.36 Indeed, one may argue that the term “employee” and the pair “employer and employee” were particularly suited to express the idea of harmony between capital and labor that attended the rise of economic liberalism in the United States. While Marx saw the wage relationship as inherently exploitative because workers did not receive the full product of their labor, the idea expressed by advocates of the free market through the idea of “employee” was that the market was a harmonious space where capital and labor naturally associated to produce goods. Tellingly, one of the best-known exponents of the theory of social harmony was Henry Charles Carey, an economist who butted heads with Karl Marx in the pages of Horace Greeley’s New York Tribune and whom Karl Marx bitterly criticized in Capital.Carey, who was active in Whig and then Republican politics and was mentioned in 1860 as a possible candidate for the presidential nomination, developed a homegrown analysis that contradicted much of the classical theory expounded by the British School, particularly the opposing interests of capital and labor. In his Principles of Social Science (1858) and his aptly titled Harmony of Interests (1857), Carey explained that wages did not need to fall to the “subsistence level” because in America capital increased faster than the population—as society developed and as the national income increased, the workers were bound to see their standard of living increasing, as had been the case so far. “The interests of the capitalist and the laborer are thus in perfect harmony with each other, as each derives advantage from every measure that tends to facilitate the growth of capital, and to render labor productive, while every measure that tends to produce the opposite effect is injurious to both.” It is no surprise, then, to find that Carey also talked about the “harmony between the employer and the employed.”37
In similar fashion, from the early nineteenth century onward, a number of pundits emphatically denied that American society was composed of classes. Ranging from Daniel Webster in the antebellum era to E. L. Godkin and William Sumner in the 1870s and 1880s, these “literary champions of capitalism,” as the Socialist Labor Party called them in 1880, deployed in the pages of the Nation and the North American Review a dominant discourse depicting class antagonism as a European phenomenon that could not take root in America. Reading into the nineteenth-century economy the workings of the market as described by eighteenth-century observers, they insisted that every laborer was an incipient capitalist, and that the market produced a harmony of interests. “There are no classes of men born, none formed, none recognized in any way, who have the right to do any conceivable thing to which other men have no right,” the linguist Richard Grant White explained in 1883. To White, as to others before him, social differences in America were rooted in education, talent, and virtue; to be sure, such qualities were not distributed equally, but the American republican form of government did not upset or trump any individual’s chances in the market or in society. As William Dolby, a man of letters, had suggested in the 1840s, “classes” existed in America, but only in the form of a “classification of employments” rather than a “classification of interests.”38
This defense of an American social order premised on a harmony of interests was reinforced by the end of slavery, for abolitionism had lent a positive sanction to wage work and the right to contract and removed the republican critique of wage slavery from the debate on free labor.39 As the lawyer James Schouler explained in his 1870 law treatise, “In these days we dislike to call any man master. The recent abolition of slavery has well nigh removed all traces of an institution known to the ancient Roman empire…. Master and Servant is a rather repulsive title, and is fast losing favor in this republican country.”40 Schouler suggested that lawyers and legal pundits should use “principal” and “agent” instead of “master and servant,” a proposal that found little echo. Seven years later, instead, one of the most influential treatises of the day, Horace Wood’s Treatise on the Law of Master and Servant, reflected the evolution of American legal English with the subtitle Covering the Relation, Duties and Liabilities of Employers and Employees.41
Wood’s treatise was significant because it offered the first definition of the employment relationship as being “at will,” meaning that both the employer and worker were free to end it as they pleased. For workers, this was a development with mixed blessings. Until the 1880s, under the “entire contract” rule, it was understood that payment for work done came at the end of the duration of the contract—if workers quit their jobs before the end of the contract, they forfeited any wages that had not been paid them for the work already done. So in this respect, the “at will” rule did represent progress for workers. Still, even as they conceived of the employment relationship as one based on consent, nineteenth-century judges expected workers to submit voluntarily to forms of obligation derived from the status-based master and servant model, according to which servants were to accept any work given to them, follow instructions, and not break their ties to the master. As a number of scholars have argued, remnants of feudalism were thus visible in post–Civil War labor law.42
One such doctrine was employers’ right to control the work of those they employed: according to the famous treatise author Horace Wood, workers had a duty to obey their master’s “reasonable commands,” which was a remnant of the old servant’s duty of allegiance. This meant that factory rules often prescribed not only working hours and quota outputs, but also obedience to usages and customs imposed by the employer. Beyond the essential right to control work, remnants of the master and servant idea of loyalty were visible in the fact that trying to entice a worker to leave an employer was illegal and in the fact that money earned by workers during the time they were employed by someone else was their employer’s, not theirs. The continuing importance of loyalty was further manifest in the legal sanction given to yellow-dog contracts, whereby workers pledged not to join a union. Additional protection against outside interference by unions in the relations between employers and workers was provided by judges who used the doctrine of conspiracy to defend American workplaces against attempts at collective control.43
Writing in 1885 as the receiver of a railroad company, Justice Brewer offered a sharp defense of the idea of worker loyalty and its incompatibility with unionism: “I do not know of any large organization of business, or any aggregation of labor, where there is more imperative demand for almost military law and discipline. You must have a corps of employés who are loyal to the road, who are looking after its interests ungrudgingly, without divided allegiance.” Thomas Cooley, another nineteenth-century conservative luminary, similarly insisted that “confidence” was essential to “friendly intercourse” in employment relations, and although he blamed employers for their workers’ turn to unions, he still believed that unions did not belong in the workplace and that workers should be made to feel that they had a reciprocity of interests with their employers.44
Yet these limits on the freedom of workers were deemphasized by the ideal of social harmony conveyed by the “employer and employee” coordinates, thus giving rise to confusion as to the sociological makeup of the group of “employees.” This ideal rested on three assumptions. The first was an important tradition of equal rights, a feature of Jeffersonian and Jacksonian America that was still present in legal discourses on workers at the end of the century. As the Supreme Court of Tennessee argued in 1884, “Men must be left to buy and sell where they please, and to discharge or retain employees at will for good cause and no cause, or even for bad cause…. It is a right which an employee may exercise in the same way, to the same extent, for the same cause or want of cause as the employer.”45
The second one was the idea that the relationship between “employer and employee” was mutually beneficial and was tied to the success of a company. When strikes broke out, conservatives were quick to point out that collective action was detrimental to both sides of the conflict because it resulted in a waste of the capital that made economic activity possible: “The day of the inauguration of the trades union and labor organizations in this country was a day of the blackest and fullest menace to the popular prosperity and peace that ever dawned on this nation. They have been an unmitigated curse on employer and employees alike,” said the Scribner’s Monthly in 1877, as the railroad strikes jolted the nation. By contrast, the Scranton Times contended, “Labor is the great moving power of this world. If the railroads have the right to reduce the rate of workmen, the workmen have the right to dissolve the partnership [note the term] and take their labor out of the firm.”46
Third was social mobility. The idea that the worker of today was the master of tomorrow remained influential late in the nineteenth century and even prevailed in modern form at the beginning of the twentieth century. Opposing an arbitration bill supported by President Grover Cleveland in 1887, the Colorado Congressman Henry M. Teller contended that “no laboring man should for a moment surrender the right to free contract either to the state, to his fellow workmen, or to capital. His labor is valuable to him only as it is at his uncontrolled disposal…. The difference between a slave and a free man consists mainly in the fact that the freeman may freely dispose of his labor. Today an employee, tomorrow an employer.”47 In 1907, a Texas judge concurred: “In this country the employee of today may be the employer next year, and laws treating employés as subjects for protective legislation belittle their intelligence, and reflect on their standing as free citizens.”48 These were words Abraham Lincoln might have used in the early 1860s, when no permanent class of wage earners was visible as yet, but in the late nineteenth century, when a majority of Americans worked in the industrial sector, it reflected a strong, willful denial of social stratification.
Employees and Producers
For years, liberal pundits such as E. L. Godkin had resisted restrictive definitions of terms of identity such as “laboring classes,” “workingmen,” and “producers” on the grounds that such definitions implied an unnatural social division. Instead, they tried to impress on Americans an expansive vision of laborers or producers that included every person involved in stimulating industry and production in one way or another. Thus, the astronomer Simon Newcomb argued in the North American Reviewthat the “laboring classes” included all who worked “with head or hand,” including “intellectual laborers,” those in professions, and those involved in “planning, directing and managing.”49
Similarly, in What Social Classes Owe Each Other (1883), the Yale scholar William Graham Sumner—one of the foremost champions of liberalism and social Darwinism—took exception to the meaning of the terms “labor” and “capital” in the producerist culture of American labor. Sumner defined labor as “toil, irksome exertion” and capital as “any product of labor used to assist production” and lamented that the discussion over the wage relationship was made difficult by other uses of these two terms—particularly the idea that labor might refer to all those contributing production except merchants, bankers, and professionals, and that capital might be reserved for large-scale employers. Breaking with this political definition of labor and laborers, Sumner fell back on the more neutral pair “employer and employed.” Comparing the “employer” and “employé” to “buyers and sellers, borrowers and lenders,” Sumner argued that their relationship was governed by the “universal law of supply and demand” and was on the whole advantageous to the worker. The employer, he explained, “takes all the risks, assumes the direction of business,” while the employé “is free from all responsibilities, risk and speculation.” Including all workers in the category “employes,” he argued that wage earners were in the same advantageous situation as salaried men. Like them, “physicians, lawyers, and workers paid by fees are workers by the piece. To the capital in existence all must come for their subsistence and tools.”50
Yet at the end of the nineteenth century, these exercises in cultural hegemony increasingly fell short of their aims. In 1887, as the country awoke to the reality of deep-seated social antagonism, the Knights of Labor leader George McNeill delivered in The Labor Movement: The Problem of Today a classic indictment of industrial capitalism, warning that workers would not be lulled by rhetorical appeals to partnership:
The old cry of partnership between labor and capital has finally awakened in the minds of the silent partners in the concern a demand for an examination of the accounts, as well as a more equitable division of the profits. Heretofore, the laborer, having no right of free contract, sold his labor at such terms and for such times as the proprietor or employer should fix; and if, at any time, the laborer asked for higher remuneration, he was informed that the interests of the enterprise would not permit an advance, and that, as one of the partners in the labor and capital combination, he must waive any right to increased payment lest he should hazard the existence of such enterprise.51
To McNeill, there was no doubt that a “crisis of mighty import” would take place unless workers forced the nation to restructure its politics and economic organization and create a “Republic of Labor.”52
For labor radicals, the individual right to pursue a calling in industry as either employer or worker did not suffice to satisfy the needs of a republican society based on equal rights. Insisting that the workers’ social position mattered just as much as their individual rights, they defended, through the term “producer,” a vision of free labor that stressed the importance of community concerns for the welfare of all and reaffirmed the principle of individuals’ voice in shaping their political and social environment. In their view, no social harmony characterized American society in the Gilded Age, for the republic was being corrupted by an elite of financiers and industrialists who had gotten hold of the transportation system, public land, and the financial system, but also of the polity and the courts in particular. Such a system, they said, fomented social antagonism because it was incompatible with the principles of democracy and equal rights. Increasingly, American workers and farmers were deprived of the just reward for their labor and of their social independence.53 Henry George’s widely read Progress and Povertymade this point eloquently when he denounced both the increased poverty and lack of education of workers in the United States and England.54
Yet neither George nor other labor radicals spoke the language of Marxism or claimed that there were antagonistic interests between employers and workers. “The principles of the Knights of Labor make no war on the Vanderbilts, but upon the system that makes the Vanderbilts possible,” McNeill explained.55 In fact, the producerist critique of capitalism was not aimed at the idea of social harmony. “The capitalist, seeking profit or gain, and the worker, seeking better and easier condition, may work as partners, with common interests, or wage unrelenting war for the mastery,” McNeill commented. Nor did this critique challenge the theory of freedom of contract as such. Rather, the Knights and their followers lamented that these ideals were no longer possible in the present economic system, which favored individualistic capital accumulation. McNeill thus noted in his pamphlet that during the 1886 congressional hearings on relations between capital and labor, an employer had emphatically asserted that he did not wish to “run his business on the town meeting plan,” a statement that in his view illustrated the fact that freedom of contract did not exist.56
For all the clamor arising from workers and farmers, attempts to restructure American politics and its economic organization around the interests of “producers” were short-lived. The Knights of Labor foundered on the shoals of political repression after Haymarket, and the Populist movement did not survive the fusion with the Democratic Party during the 1896 campaign.57 As for the American Federation of Labor, the only federation of unions in the country, although it was founded on the need to represent “the working classes” of the country, it soon limited itself to the craft workers for whom the struggle for independence and dignity remained possible. Law and deep-seated prejudices against immigrants thus combined to create a segmented market in which many “employés” enjoyed no citizenship at work.
Still, the emergence of the labor question as the dominant question of the day proved that nineteenth-century economic liberalism was increasingly untenable. In due time, the idea that negotiation between employers and workers should be based on a true negotiation and reflect democratic principles such as the “town meeting plan” would be essential to the shaping of labor relations. Before this could happen, however, two developments were necessary. First, it would be necessary to lay the legal framework necessary to wrest American workers from the tendrils of the free labor ideology. Second, a fresh rationale for the democratization of the workplace—one that would not simply look back to preindustrial America, but would also speak to the needs of a nation with a majority of people working in an emerging Fordist, mass-production economy—would be needed.
The ideal of social harmony, however, like the term “employee” whose introduction to American discourse it had facilitated, did not disappear with traditional liberalism. Rather, it was reconstructed by a generation of progressives who accepted the reality of the class struggle but nonetheless believed that class interests—defined now as the “correlative interests” of employer and employee—could be reconciled and industrial conflict contained.