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“As Best to Subserve Their Own Interests”: Lemuel Shaw, Labor Conspiracy, and Fellow Servants

Published online by Cambridge University Press:  28 October 2011

Alfred S. Konefsky
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Extract

Over thirty years ago, Leonard Levy, building explicitly on suggestions first offered by Walter Nelles, and implicitly on observations made by Roscoe Pound, commented on the unusual conjunction of two decisions announced within weeks of each other in 1842 by Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court. The cases, Farwell v. Boston & Worcester Railroad which helped create the fellow servant rule in the United States, and Commonwealth v. Hunt, which involved a prosecution for criminal conspiracy for organizing a labor union as a closed shop, seemed at odds. Hunt appeared to expand worker rights to collective action, while Farwell appeared to restrict worker rights to compensation from workplace injuries. Shaw's apparent protection of a worker's right to organize, “a pro-worker stance,” seemed to conflict with his refusal to recognize a worker's right to recover for an industrial accident in particular circumstances, “an anti-worker stance.” The question is obvious—how can these decisions be made compatible, or does their incompatibility have to be accepted with a shrug of the shoulders and a nod toward the evolutionary progress of the common law?

Type
Articles
Information
Law and History Review , Volume 7 , Issue 1 , Spring 1989 , pp. 219 - 239
Copyright
Copyright © the American Society for Legal History, Inc. 1989

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References

Notes

1. Nelles, , Commonwealth v. Hunt, 32 Colum. L. Rev. 1128, 1151–52 (1932)CrossRefGoogle Scholar.

2. Pound, R., The Formative Era of American Law 86–88 (1938)Google Scholar.

3. Levy, L., The Law of the Commonwealth and Chief Justice Shaw 192, 199 (1957)Google Scholar.

4. 45 Mass. (4 Met.) 49 (1842).

5. 45 Mass. (4 Met.) 111 (1842).

6. L. Levy, supra note 3, at 192.

7. Id.

8. Id.

9. Nelles, supra note 1, at 1151.

10. Howe, M., Readings in American Legal History 433–529 (1949)Google Scholar.

11. L. Levy, supra note 3, at 199.

12. Holt, , Labour Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication, 22 Osgoode Hall L.J. 591, 639 (1984)Google Scholar.

13. Id. at 640. Raymond Hogler also refers to the perception that historically the two cases appear to be an “anomaly.” Hogler, , Law, Ideology, and Industrial Discipline: The Conspiracy Doctrine and the Rise of the Factory System, 91 Dick. L. Rev. 697, 733 (1987)Google Scholar.

14. C. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960, at 44 n.40 (1985). Oddly enough in the conclusion of his book, Levy himself comes close to suggesting something along these lines, though he seems to refer to it more generally as “individualism.”

Despite the conflicting impact of the two decisions on labor's fortunes and the fact that they are not comparable from a legal standpoint they harmonize as a part of Shaw's thought. He regarded the worker as a free agent competing with his employer as to the terms of employment, at liberty to refuse work if his demands were not met. As the best judge of his own welfare, he might assume risks, combine in a closed shop, or make other choices. For Shaw, workers possessed the same freedom of action enjoyed by employers against labor and against business rivals. Although the fellow-servant and trade-union decisions had the effect of dividing two loaves, the baker fashioned them from similar ingredients, legal ones excepted.

L. Levy, supra note 3, at 325.

15. C. Tomlins, supra note 14, at 44.

16. M. Horwitz, The Transformation of American law, 1780–1860, at 209–10 (1977).

17. Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49, 50 (1842).

18. Id. at 51. Horwitz claimed, of Loring's argument, that “rarely in the history of American law has so significant a case… been so thoroughly determined by the intellectual impoverishment of counsel.” He is, of course, referring to Loring's concession that respondeat superior did not apply. Though Loring's concession was fatal, it is possible to look at his argument, stressing contractarian principles, as an attempt to highlight, and therefore, capitalize on the most contemporary, even trendy, shift in the doctrinal winds. It may be impoverishment, but if it is, he got trapped in the shifting currents. Respondeat superior may have looked like a winner theoretically, but not once Shaw examined it. Also Loring may have been trying to launch a preemptive strike. If the contractarian movement was so overwhelming, as Horwitz argues, Loring did not have much choice. M. Horwitz, supra note 15, at 210.

19. Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49, 56 (1842).

20. Id. at 55–56.

21. Id. at 56.

22. Id.

23. Id.

24. Id.

25. Id. at 51.

26. Id. at 56.

27. Id. at 57.

28. Id.

29. Id.

30. Id. There was a quaint old Massachusetts practice in certain kinds of property cases of throwing the risks of various injuries back on property owners, who, it was assumed, should have foreseen those risks and protected themselves accordingly. See Thurston v. Hancock, 12 Mass. 220 (1815), and Callender v. Marsh, 18 Mass. (1 Pick.) 418 (1823).

31. Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49, 58 (1842).

32. Id.

33. Id. at 59.

34. L. Levy, supra note 3, at 185.

35. Id. at 185–86.

36. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 123 (1842).

37. C. Tomlins, supra note 14, at 42.

38. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 130 (1842).

39. Id.

40. C. Tomlins, supra note 14, at 42–44; see discussions in text, supra, at note 16.

41. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 130–31 (1842).

42. Id. at 131.

43. Id. at 133.

44. Id. at 134.

45. L. Levy, supra note 3, at 190–91.

46. Id. at 191.

47. Id. at 204.

48. C. Tomlins, supra note 14, at 38–42, and Tomlins, , Criminal Conspiracy and Early Labor Combinations: Massachusetts, 1824–1840, 28 Lab. Hist. 370 (1987)CrossRefGoogle Scholar.

49. C. Tomlins, supra note 14, at 44.

50. Id.

51. In this way, I think Shaw is different from his contemporary, Joseph Story, who seemed to resent, after a while, being in the nineteenth century. You might say he was dragged kicking and screaming forward in time. See R. Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985), and Konefsky, , Law and Culture in Antebellum Boston, 40 Stan. L. Rev. 1119, 1134–45 (1988)CrossRefGoogle Scholar.

52. White, G., The Marshall Court and Cultural Change, 1815–35 (1988)Google Scholar.

53. Id. at 49.

54. Id. at 48–49, nn.95, 96.

55. Id. at 49–50.

56. Id. at 50.

57. Id. at 50–51.

58. Id. at 49.

59. Id. at 61.

60. Wilentz, Artisan Republican Festivals and the Rise of Class Conflict in New York City, 1788–1837, in Working-Class America 37, 49 (M. Frisch & D. Walkowitz ed. 1983). In particular, Wilentz is interested in the

need to understand how workers rearticulated widely held republican beliefs into a critique of American capitalism. It is one thing to take account, as have several fine studies, of what Foner calls “the contradiction between republican thought and the expansion of capitalist production and market relations.” It is quite another to show how these contradictions arose and why workers grappled with them in the ways that they did. Put another way, the history of American working-class republicanism has yet to be explained fully as a process of ideological confrontation, negotiation, and redefinition, a fitful process that changed the meanings of old terms as much as it revived them, and that only gradually pitted employers against employees. To analyze this process, it is vital to examine the common roots of both radical republicanism and the entrepreneurs' republican defense of emerging industrial capitalism and then to see how entrepreneurial republicanism tested and helped to forge—and was in turn tested and forged by—the very different republican notions of labor radicals.

Id. at 38.

Along the way, Wilentz argues that

Through the early nineteenth century, the New York artisans' economic liberalism, the “middle-class” possessive individualism so often ascribed to them as a matter of course, was tempered by an older spirit of cooperation in the workshop and republican notions of virtue and commonwealth. The breakdown and eventual bifurcation of this set of ideals signified far more than the evocation of “equal rights” and the spirit of 1776 so often stressed by historians. Through the mid-1820s, artisan republicanism stood for an entire moral order, based on the interlocking concepts of independence, virtue, and citizenship and closely related to the “pre-capitalist” features of artisan production and distribution.

Id. at 63.

The evocation by historians of “equal rights” that Wilentz refers to includes A. Dawley, Class and Community: The Industrial Revolution in Lynn (1976) (a study of Lynn shoemakers). See generally, S. Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788–1850 (1984).

61. C. Tomlins, supra note 14, at 34–35. See also Tomlins, supra note 48, and Wilentz, , Conspiracy, Power, and the Early Labor Movement: The People v. James Melvin et al, 1811, 24 Lab. Hist. 572 (1983)CrossRefGoogle Scholar.

62. G. White, supra note 52, at 50.

63. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 130 (1842).

64. Id.

65. G. White, supra note 52, at 51.

66. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 134 (1842).

67. Id. at 130.

68. White perceptively asks “Why would the new, ‘equal’ competitors not eventually sort themselves out into another hierarchy, this one determined by the market?” G. White, supra note 52, at 68.

69. Obviously arguments could be and were raised, in a variety of ways, against the rights of unions. I do not mean to suggest for a moment that Shaw was not aware of them; I think, at least at this point, he was occupied with a paradigm that tended to make him include unions within a way of thinking rather than exclude them. For contemporaneous legal arguments against the union in the Hunt case that Shaw certainly knew about, see Tomlins, supra note 48. See also, C. Tomlins, supra note 14, at 40–44.

70. The subject of the debate was the qualification of voters. 1 Official Report of the Debates and Proceedings, in the State Convention, Assembled May 4th 1853, To Revise and Amend the Constitution of the Commonwealth of Massachusetts 285 (1853), also as quoted in Steinfeld, , Property and Suffrage in the Early American Republic, 41 Stan. L. Rev. 335, 351 (1989)CrossRefGoogle Scholar.