Academic journal article The William and Mary Bill of Rights Journal

Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after Its Enactment

Academic journal article The William and Mary Bill of Rights Journal

Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after Its Enactment

Article excerpt

In the nineteenth century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers.1 Blackstone's Commentaries on the Laws of England was the received common law in the United States, from the early days of the Republic through the settlement of new states in the American West.2 Blackstone's Chapter Fourteen, entitled "Of Master and Servant," organized the legal rules into a system of subordination as formal inequality.3 Blackstone's entire chapter used slavery as its foundation,4 rather than partnership or voluntary free labor. Even though the common law is celebrated for its flexibility and its potential to make iterative changes-"work itself pure," as some legal philosophers sometimes describe it5-Blackstone's formal inequality remained relatively unaffected during the early Republic.

Against this feudal common-law backdrop, Reconstruction egalitarianism injected a breath of fresh air-an opportunity to redefine the relationship of working people to their employers. An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights.6 This was an opportunity to revise the formal inequality of the common-law doctrine, as successive constitutional amendments and national reconstruction reset the law in fundamental ways. Because creating parity between working people and their employers was one of Reconstruction's objectives, there were opportunities to revise master-servant legal doctrine in a more balanced direction.7 With the Thirteenth Amendment's enactment, all workers were recognized as having a constitutional right to quit employment and leave their employers.8 But more reforms-new work-related laws-were needed as the freedmen transitioned to a free labor system in a climate in which the defeated masters sought to maintain their positions of dominance over their former slaves. It should be noted that the Thirteenth Amendment was targeted to eliminate two forms of oppression: both racial domination and labor exploitation under slavery.9 The Southern state legislatures moved quickly to enact statutes called "Black Codes" to maintain their pre-war practices. Many of these were directed at race but others framed labor practices.10

In a series of speeches over several months, members of Congress decried these subordinating laws as Southern states revised their legislation. Often this new subordinating legislation was handily borrowed from similar aspects of common-law doctrine.11 For example, one state legislated that hereafter African-American workers would be referred to as "servants."12 The abolition ofslavery and involuntary servitude, and the reconstruction of labor systems in the Southern states, should have been an event of major reorganization in nineteenth-century master-servant law.

Y et, master-servant law survived Reconstruction,13 and American law continues to bear its imprint to this day.14 So why did master-servant law survive? Or more particularly, why did the Reconstruction reforms fail to revise master-servant law? The answer seems to be found in a combination of factors. The federal courts basically ignored the Thirteenth Amendment, and they tightened the Fourteenth Amendment to a much narrower field of application than the text actually provided.15 State courts, on the other hand, have the major duty to revise the common law, but in order to do so, cases must be brought to them. Procedurally, the common law specified the types of writs available to plaintiffs, and while masters had several types of causes of action to bring regarding their interests in their servants, servants did not. Blackstone's chapter on master and servant would be cited again and again, especially whenever there was no clear basis on which to decide a case. And employee-plaintiffs had little recourse under master-servant doctrine. Moreover, working people were not in a favored position to bring their grievances to courts because they rarely had the legal resources to argue for expansions of their labor rights. …

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