CHAPTER II INDIVIDUAL BARGAINING It con In the broadest sense of the term a debt is that which is due from one person to another, whether money, goods, or services. The laborer as debtor may, therefore, be looked upon as owing either labor or money to another. But modern law does not force a laborer to work out his debt. verts a labor debt into a money debt, or "damages," and enforces payment of the latter. Furthermore, under "exemption" laws, the law does not always enforce even the total payment of a money debt. On the other side, the laborer is a creditor to the extent that the employer owes him money for his labor. Here, too, modern legislation gives him certain privileges or protection, not usually given to other creditors. It is in this twofold relation of debtor and creditor that we trace the history of labor law from the servile stage, through the stage of master and servant, to the modern stage of employer and employee. 1. THE LABORER AS DEBTOR If we classify the legal relations of the laborer as debtor we shall begin with the employment of labor in its elementary form of slavery where all of the rights were on the side of the owner and all the obligations on that of the laborer. This, and a succeeding or contemporary stage of serfdom, are known as a period of status. The laborer is born to the 1 Kimpton v, Bronson, 45 Barb. 625 (1866). position and does not enter it by agreement or contract. But status often merges into contract, or the fiction of a contract, and we may therefore speak of a servility stage, or a stage of servile contracts, preceding that of free contracts. Here would be classified slavery, serfdom, and peonage. These conditions of labor, even if based on contract, may be so evidently the outcome of coercion that they may rightly be considered as belonging to a pre-contract or servile stage. A second stage, which we may designate as that of master and servant, emerges gradually from the more liberal forms of servile contracts, although retaining vestiges of servile relations. Some of the contracts of this stage, especially the seaman's contract, have continued down to the present day, while others, such as apprenticeship, indentured service, and contract labor, can with difficulty be distinguished from those of the servile stage. The ameliorating character of both the servile and master stage is that of paternalism, and both of them are closely connected with the institution of the family, in which the wife and children occupy a position of status, afterward modified by contract, express or implied. Modern labor legislation, as understood in this book, begins with a conscious effort on the part of the legislature to remove both the servile and paternal vestiges of the master and servant stage and to substitute a stage of real equality, as far as possible. This we designate as the employer_and employee stage. (1) Servile Labor a. Slavery. The worker under primitive slavery is regarded as the property of his master. In Roman law a slave was regarded not as a person, but as a thing. In 1776 Mr. Justice Chase of Maryland said: "Negroes are property, and no more members of the state than cattle." " In England, in 1772, it was held by the court that slavery could not exist in the mother country. The slave trade was abolished by statute there in 1807, and in the colonies in 1833. 1 Sohm, Institutes of Roman Law, tr. Ledlie, 1901, p. 171. 2 Wilson, History of the Rise and Fall of the Slave Power in America, n. d., Vol. I, p. 15. The example of Great Britain in regard to her colonies was gradually followed by other European states, by France in 1848, Portugal in 1858, Holland in 1863. Spanish-American states abolished slavery after securing independence. In the United States the slaves were freed in 1865 by the thirteenth amendment to the federal constitution, as an outcome of the Civil War, and Brazil, the South American state which retained slavery longest, abolished it by decree of the Chambers in 1888. b. Serfdom. Slavery aims at the subjection of the whole man. Another degree of unfreedom, namely, serfdom or villeinage, does not attempt to cover the entire range of human life. It is concerned only with certain relations, generally economic in character. Compulsory labor-compulsion as to the kind of service and the time and place where it is to be rendered-is the essential note of serfdom or villeinage. A serf was bound to the land and bought and sold with it, like cattle. But he might secure freedom by commutation," that is, by paying to the lord or master who had the title to the soil a sum of money or an annual payment presumably equivalent to the value of the service which he rendered his lord. He substituted a money debt for a labor debt-in other words, he bought his freedom. Serfdom appears as a corollary of feudalism. It grew up as a consequence of customary subjection in an agricultural system and melted away with the advent of the industrial age. c. Peonage. Peonage has been defined as a "status or condition of compulsory service based upon the indebtedness of the peon to the master." The basic fact is indebtedness. In Mexico, after the Spanish conquest, slaves were used in mines and on roads, while serfs or peons were used for agriculture. The condition of the latter, though differing little from slavery, was theoretically more humane and rightrespecting. Together with peonage a system of large estates grew up. The peons got food and clothing from their masters.2 These Mexican peons are descendants of natives enslaved by the Spaniards, and are often merely bondsmen.3 1 1Clyatt v. U. S., 197 U. S. 207 (1904). * United States Bureau of Labor, Bulletin No. 38, 1902, p. 23. W. E. Carson, Mexico, 1914, p. 185. Their wages are so low that they are always without money, and they are compelled to deal at the store of the estate. They are always kept in debt, and, according to Mexican law, an Indian workman owing his employer becomes the property of the latter. Sometimes peons are induced to contract for work to be done in tropical parts, and here they get into debt at once and are prevented by armed guards from escaping.2 In the United States, after the abolition of slavery by the thirteenth amendment in 1865 the proprietors, being deprived of their property right in the services of the slave, sought in some cases to effect the same purpose by indirect means, such as enforcing indebtedness and compelling the working out of the debt. These subterfuges gave added impetus to the agitation which led to the adoption, two and a half years later, of the fourteenth amendment, which created a citizenship of the United States in addition to that of the state, and prohibited any state from depriving a citizen of the United States of "life, liberty, or property without due process of law," or denying "to any person within its jurisdiction the equal protection of the laws."3 In 1875 the United States Congress passed statutes which have been thought to enforce the meaning of the thirteenth amendment. That they do not entirely accomplish this is pointed out by the Immigration Commission of 1911.4 One statute provides heavy fines for those who "conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the constitution of the United States";5 and another for "every person who kidnaps or carries away any other person, with the intent that such person be sold into involuntary servitude, or held as a slave." But, as the Immigration Commission shows, "if a person simply places or holds another in slavery, it is impossible for the federal courts to impose 1 W. E. Carson, Mexico, 1914, pp. 188, 189. 2 Ibid., p. 191. See also Ely, Property and Contract, 1914, Ch. X. 3 Constitution of the United States, Fourteenth Amendment, Sec. 1, in force July 28, 1868. 4 Immigration Commission, Abstracts of Reports, 1911, Vol. II, p. 446. United States Revised Statutes, 1898, Sec. 5508. 6 • Ibid., Sec. 5525. penalties under statutes at present in vogue (1911), unless the placing or holding be for the purpose of forcing the settlement of a debt, no matter how great may be the abuses perpetrated upon the person held. In the Clyatt case the Supreme Court decided unmistakably that the peonage statute (R. S. 5526) referred only to cases where the return or arrest or holding has been for the purpose of paying a debt." The chief origins of the enforced indebtedness upon which peonage rests are advances made by the employer to the laborer, misrepresentations made to laborers by unscrupulous employment agents, the payment by an employer of fines and costs in cases of misdemeanor, especially violations of vagrancy laws, and the operation of contract labor laws. Advances to laborers might include payments for transportation, working equipment of various sorts, and any payment in kind, such as food, clothing, or housing, accomplished through company stores and land ownership. An example is found in the state of Maine, where advances are made to laborers sent out by employment agents who "misrepresent conditions in the woods, and frequently tell the laborers that the camps will be but a few miles from some town where they can go from time to time for recreation and enjoyment. Arriving at the outskirts of civilization, the laborers are driven in wagons a short distance into the forests, and then have to walk sometimes sixty or seventy miles into the interior, the roads being impassable for vehicles. The men will be kept in the heart of the forest for months throughout the winter, living in the most rugged fashion and with no recreation whatever."2 Similar practices of deceit were exercised by the agencies which send labor from New York to the South. Abuses of the vagrancy laws were found to occur in the South, involving both negro and white laborers.3 In Florida, for instance, 'common pipers and fiddlers, common railers and brawlers" may be arrested under the vagrancy law of Immigration Commission, Abstracts of Reports, Vol. II, p. 446. See also Clyatt v. U. S., 197 U. S. 207 (1904). 2 Immigration Commission, Abstracts of Reports, Vol. II, p. 447. United States Department of Justice, Annual Report of the AttorneyGeneral, 1907, Exhibit 17, pp. 207-213. |