Happy Labor Day! Peter Frase encourages us to celebrate workers, not work. Good Magazine has a list of 10 things the labor movement has brought you – weekends, 8-hour work days, etc. One thing I’d like to add to that list is that labor unions were key in restricting the freedom of contract to actually create what we take for granted as “free” labor in the 20th century. Consider this a #11 to the list: fighting against backwards, regressive, hierarchical, feudalistic forms of labor contracts.
Let’s take a typical worker who had a bad day at the office in 19th Century England (quotes, graph below and analysis from from Steinfeld’s excellent Coercion, Contract, and Free Labor in the Nineteenth Century; also see Steinfeld’s The Invention of Free Labor and Orren’s Belated Feudalism). What did his employer do to punish him?
George Heywood of West Bromwich was a bundler at the furnace of an iron works with both puddlers and millmen dependent upon him. Because he left his labour for a few hours, “the work was very much in arrears and other men were idle.” He was given the option of paying £5 damages or having two months in prison and remarked that “he would have to have the two months.”
And so he did. As a result of Master and Servant laws in England, a laborer breaking a labor contract could be sentenced to jail time for not performing satisfactorily on the job. He or she could also go to jail if they quit their job before the labor contract was completed. How’s that for “free” labor?
For fun, let’s get a a graph going. Let’s get a plot of the rate of prosecutions for a specific crime, “Offences Relating to Masters, Servants and Apprentices” for England and Wales against the unemployment rate in mid-to-late 19th century England:
The “prosec” line is the number of people jailed as a result of quitting their jobs before their contract expired or not doing their jobs as well as their bosses dictated. The other two lines are two estimates of unemployment at the time. As you can see, at full employment, when workers have the most power to demand higher wages or leave to find better, more fulfilling, opportunities, is when the most workers were jailed under Master and Servant laws. As one historian notes:
[t]here is . . . a correlation between the working of the trade cycle and the number of prosecutions in these Black Country towns…This would suggest that a worker would be less likely to challenge his employer in a period of slump and unemployment and cases of leaving work with- out notice and neglect of work would be much less frequent. However, in a period of trade boom and prosperity, the worker could use his economic power to better effect. Skilled workers especially wanted the right to sell their labour to the most generous employer and therefore were tempted to break their contracts. . . . When labour was scarce, employers were doubly determined to enforce con- tracts, and with a sympathetic magistracy behind them many more cases were brought to court.
America didn’t have this relationship quite the same way after indentured servitude died out in the 1820s in the North, though the post-Civil War South tried hard to keep these kinds of punishments going. But what the United States did have is a series of other legal coercions designed to get more out of workers at a cheaper cost through pecuniary remedies. Under 19th century common law rule in America, workers could lose all their back wages if their employers found they didn’t faithfully perform their labor duties. Since employers withheld wages, workers had to choose between a lack of mobility and losing a significant amount of earned pay. Here’s how that looked:
The entirety doctrine typically worked as follows. If an agricultural laborer agreed to work for a farmer for a year at $20 a month or $240 for the year, and the worker quit after working ten full months, the contract was construed to be entire, unless the employer had expressly agreed to pay the $20 a month to the worker at the end of each month. Full performance by the worker was considered a condition that had to be fulfilled before an employer was obligated to pay any wages under the contract. The worker was entitled to recover nothing under the contract for his ten months of service. No claim could be maintained that he was entitled to a divisible part of the contract price for ten months of labor. The employer was viewed as having bargained for twelve full months of service, and not for anything else, and it was for twelve full months of service that he had agreed to pay $240 at the conclusion of the term.
Given that workers are working paycheck to paycheck, this has massive consequences for the health and wellbeing of workers. Think about how abusive this looked in the 10th and 11th months.
This isn’t the “free” labor you think of when you think of “free” labor, and you don’t live in this world. Why? Here’s the important part. You may think that the sweeping away of feudal policies of detention, criminality and pecuniary punishments against workers were part of a 19th century movement of laissez-faire liberalism reworking the marketplace. But you’d be wrong – the rhetoric of free contracts actually reinforced these arrangements. For if a contract that has these punishment features are voluntarily entered into how can the state get in the way? Judges and intellectuals emphasizing laissez-faire markets and free contracts couldn’t see a problem with these arrangements, as long as they were entered into freely. Anything entered into freely and without coercion couldn’t be unfree.
Enter labor. These penalties, criminal and pecuniary, were slowly removed from the books by laws, courts that upheld the laws and the activism and planning of organized labor. For labor saw that this was essentially unfair – bosses aren’t penalized in the same way and that these kinds of contracts create fundamentally unfree citizens and workers wherever they show up. The pro-labor legislation and judicial decisions that gives us the notion of “free” labor – of freedom of mobility and to exit a labor contract without penal or pecuniary punishment – that you take for granted is a recent phenomenon, going from around 1875 to the New Deal. And this modern “free” wage labor is entirely a construction of state regulation that restricts certain labor arrangements.
So when you think about labor giving you the weekend and the eight hour day, also remember that labor gaves you the right to say “F*$% You I’m Quitting” to your boss without going to jail and the ability to get paid every other week instead of once a year under heavy threat of forfeited wages. So here’s to labor, which is less about about marginal products and surpluses and more about fighting feudalism in the workplace wherever it shows up.