Richard B. Morris, Government and Labor in Early America, 1946.
James Madison, writing in 1787, made explicit the fundamental role of government as a regulator of economic and class interests.1 The relations, prior to the rise of trade unionism, between labor, one of these economic classes, and government are analyzed in the present study. Although unorganized in the main and largely inarticulate in America of the seventeenth and eighteenth centuries, labor has been nevertheless considered here as a social unit, for, as Arthur F. Bentley stated many years ago, groups not fully enjoying political and civil rights are a factor in government if only because of their potentialities for affecting other groups.2 While, labor had certain separate and distinct interests in the colonial and Revolutionary periods, its members were not precluded from making common cause with others, as, notably, in joining with the commercial interests to protest the British policy on the eve of the Revolution. A fuller understanding of the part the worker played in the fashioning of our early American institutions should serve to introduce a note of greater realism into the study of American history.
PREFACE Government in this volume is not considered in monistic terms. The British imperial machinery, the Continental Congress, the colonial and early state governments all concerned themselves with labor relations, as did the county, the town, and the parish. In the seventeenth and eighteenth centuries there was no simple tripartite form of government to deal with labor problems, although the principal supervisory responsibility devolved upon the courts. To a very considerable degree the courts acted as administrative as well as judicial bodies, and there was no sharp line of demarcation separating the areas of judicial action from those of administration. Governors served as chancellors, mayors and aldermen as judges of inferior courts, legislatures acted as appellate courts, town and county conventions adopted economic regulations which had some sanctions behind them, and local emergency committees at times assumed judicial powers. The problem of appeals from administrative tribunals to the courts is not novel to the twentieth century. Sessions courts had the right to review the actions taken by the local justices, although in certain areas the right of appeal was circumscribed by statute.
From the modern era when the employment relationship is terminable at will it may seem a long road back to the days when the master had the right to sell or assign a servant for the remaining term of service and to secure the specific performance of a personal service contact. Conversely, it may seem a long journey forward from the time when the master could discipline a disobedient servant to the National Labor Relations Act which defines as an unfair labor practice the employer's refusal to bargain collectively with representatives of his employees. Actually, as this study discloses, the hand of the past is still writ large in the labor law and labor relations of this country, and the early concepts and procedures often forecast the shape of things to come. The experience of government with labor in the first two centuries of American history holds numerous clues to later developments and provides significant parallels to current patterns. Wage- and price-fixing and economic stabilization, the right of workers to take concerted action for their own advancement, child labor, absenteeism in industry, pirating of workers, restrictions on admission to a trade, restraints upon dismissals, conscription of labor -- all contemporary labor problems accentuated by the crisis of the second World War -- constitute the core of the master-servant relations that were supervised by colonial and Revolutionary governments.
In considering early American labor relations this study is confined to an analysis of the legal and social position of free and bound labor. Except in so far as its impact was felt directly upon the free and bound labor systems, slavery is not accorded special treatment; ample documentary sources and secondary accounts of slavery are available. The early free and bound labor systems, have far greater significance to the student of contemporary social and governmental problems. Phases of the free labor and indentured servant systems which have been competently surveyed in the pioneer studies of Sartorius von Waltershausen, Geiser, Herrick, Jernegan, Seybolt, Saposs, McKee, and other investigators are alluded to briefly. Fuller exposition is reserved for areas not previously explored to any extent. Throughout the volume an attempt has been made to give adequate recognition to the economic and regional diversities prevailing along the Atlantic seaboard and to consider the problems of government and labor in relation to these diverse conditions as well as to the English social, economic, and legal heritage of the American colonists.
Some twenty thousand cases, largely unpublished, have been reviewed in the course of the investigation of which this volume is the end product. The principal source has been a field largely unexplored -- the unpublished inferior court records of the American colonies. To examine these, the writer traversed the Eastern seaboard from Wiscasset, Maine, and Woodsville, New Hampshire, to St. Augustine, Florida. Statutes, town ordinances, and vestry books complemented the judicial records.3 Wherever possible these sources were supplemented by contemporary newspapers, accounts of travelers, diaries, letter books, military order books, and business papers.
Paper restrictions imposed by our wartime emergency dictated a drastic reduction of the size of this book. Subjects cognate to labor relations, such as price regulation, the responsibility of the employer for injuries to his employee, and the impact of the white labor system upon slave labor, have therefore received brief allusion only. It was necessary to omit numerous tables illustrating the business of the colonial courts in the labor field and the specific action taken in such fields as absenteeism, servitude in satisfaction of criminal sentence, apprenticeship, grounds for granting relief to servants, and wage suits brought by mariners.4 Nevertheless, the general trends and conclusions to which these tables point have been included, and the actual cases have been cited in compact footnotes.
This study was in considerable measure made possible by grants received from the Social Science Research Council and the American Philosophical Society. I have benefited materially from the generous cooperation of a number of scholars. I am particularly indebted to three former students -- my colleague, Dr. Jonathan Grossman, for assistance in gathering data relating to wage- and price-fixing, and to Mr. Lester Jayson, Special Assistant to the Attorney General, and Technical Sergeant Martin Kleinbard, U.S. Army Air Force, both of the New York bar, for helpful suggestions at other points in the investigation. Professor Abbot Emerson Smith of Bard College very graciously allowed me to consult data he had gathered in the preparation of his forthcoming study of colonial immigration, and Professor Lawrence A. Harper of the University of California and my colleague, Lieutenant John M. Cox, U.S. Army Air Force, turned over for my use microfilm of the British Naval Office lists which they had jointly prepared. I have enlisted the aid of a number of experts in contemporary labor law, among them Professor Arthur Lenhoff of the University of Buffalo School of Law, who read and criticized the chapter dealing with the enticement and pirating of workers. At a number of points in the course of this investigation I had occasion to consult Professor Eli Heckscher of the University of Stockholm, the late Dr. Charles M. Andrews, New Haven, Conn., Dr. Evarts B. Greene, Croton-on-Hudson, N.Y., and my colleague, Professor Michael Kraus.
Archivists, librarians, and staffs of county seats facilitated research in the field at every point. Virtually all the state directors of the Historical Records Survey in the thirteen original states allowed me to consult the useful inventories of the public records (many of which remain unpublished) that have been prepared under their direction. Thanks are especially due to the National Directors of that project, Dr. Luther Evans, now Librarian of Congress, and Mr. Sargent Child. I am also indebted for aid in the field to Miss Mary T. Quinn, Archivist of Rhode Island, to Mr. Norbert Lacy, New Haven, Conn., and Mrs. Louise G. Newton, Connecticut State Library, to Professor John T. Farrell, College of New Rochelle, to Mr. Maxwell Vollins, Hall of Records, New York City, and to Mr. George J. H. Follmer, clerk of the United States District Court for the Southern District of New York, to Mr. George J. Miller of the New Jersey bar and Professor H. Clay Reed of the University of Delaware, to Mr. Leon de Valinger, Jr., Archivist of Delaware, and to the late Dr. James Robertson, Archivist of Maryland, and his successor, Dr. Morris L. Radoff, to the late Hon. Carroll T. Bond, Chief Judge of the Maryland Court of Appeals, and to Hon. Emory H. Niles, Judge of the Supreme Bench of Baltimore City, to the late Mr. Morgan Robinson, Virginia State Library, to Dr. C. C. Crittendon, North Carolina Historical Commission, to Mr. A. S. Salley, Jr., South Carolina Historical Commission, and to Mrs. Katherine F. Lawson, St. Augustine Historical Society.
Special thanks are due the record custodians or librarians of a number of repositories visited in Great Britain, including the Guildhall, London, the British Museum, the Public Record Office, and the Bodleian Library. In this country acknowledgment is gratefully made to the librarians of the New Hampshire Historical Society, Concord, the Baker Library, Dartmouth College, the Athenaeum, Boston, the Boston Public Library, the Harvard Law School Library, the Newport Historical Society, the New York State Library at Albany, the New York Historical Society, the New York Public Library, the Association of the Bar of the City of New York, the College of the City of New York, Columbia University, the Historical Society of Pennsylvania, the Library of Congress, the Virginia Historical Society, the Charleston Library Society, the Georgia Historical Society, and the Henry E. Huntington Library, San Marino, California, among many private repositories visited, for courtesies extended. Acknowledgment should also be made to the editors of the Political Science Quarterly and the New England Quarterly for their permission to use the substance of articles which appeared in those periodicals.
Dean Harry J. Carman and Professor J. Bartlett Brebner of Columbia University and Professor Lawrence A. Harper of the University of California generously undertook the laborious task of reading the original manuscript, and I am indebted to them for their keen and incisive suggestions for revising this study. Dean Carman's faith in this enterprise, and the encouragement of other friends, including Frank G. Sommer, former Dean of New York University School of Law, Mr. Jacob Billikopf of Philadelphia, and Mr. John Dickinson, General Counsel of the Pennsylvania Railroad, will remain treasured pages in the memory of one scholar. Throughout the long years of investigation the writer received very substantial help and encouragement from his mother and his wife, who too often sacrificed other interests to share the labors of uncovering, copying, and collating documentary sources. To them he will always be deeply grateful. The valued editorial assistance of Miss Matilda L. Berg of the Columbia University Press is also gratefully acknowledged.
Richard B. Morris
December 75, 1945
New York CityNotes 1 The Federalist, No. 10.
2 See Arthur F. Bentley, The Process of Government: a Study of Social Pressures (Chicago, 1908), pp. 211, 269, 271.
3 The documentation to this volume should serve as a guide to the unpublished judicial sources available for the prosecution of social, economic, and legal studies in the area of American history in the seventeenth and eighteenth centuries. For general suggestions, see R. B. Morris, "Early American Court Records: a Publication Program," Anglo-American Legal History Series, No. 4 (New York, 1941). The main regions traversed for this study are surveyed therein. The published official sources -- imperial, colonial, county, town, and parish -- which were examined in the preparation of the present work are listed in E. B. Greene and R. B. Morris, A Guide to the Principal Sources for Early American History (1600-1800) in the City of New York (New York, 1929).
4 These tables and other unpublished illustrative documents have been placed on file with the American Labor Archive and Research Institute, New York City, in the belief that they may be effectively utilized by research workers in the field of early American labor history.