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Sarah Winsberg
J.D. & Univ. of Penn. Ph.D. candidate (History)

Making Work: Lawyers and the Boundaries of Labor, 1780-1860



What counted as labor in early American law? No single concept served as a progenitor of modern employment law. Husband and wife, parent and child, master and servant, partnership, and corporation—all, in eighteenth-century reference works like Blackstone’s Commentaries, were relationships of “persons,” and all existed to structure and control labor. My dissertation research explains how legal writers undid this diverse spectrum of labor, beginning to define a modern understanding of work as synonymous with employment. By examining the work of these lawyers, who wrote and rewrote guides for their colleagues, I expose the conceptual struggles that were required to imagine and institutionalize profound changes in who could be a worker and what work meant. Legal writers invented new categories for hired labor, and simultaneously transformed the laws of slavery, marriage, and business organization, newly defining those subjects in decidedly non-labor terms. These developments, which are usually considered separately, were part of a larger process of creating and contesting boundaries between employment and not-employment. The rise of adult white male wage labor in the early nineteenth century was sudden, and, in a society built on the myth of the independent yeoman farmer, potentially destabilizing. Lawyers helped legitimize employment by removing slaves, wives, and capital investment from a newly invented concept of work. My conference paper presents the framework and preliminary research from this dissertation project.

During the first half of the nineteenth century, participation in what historians usually call “wage labor” took off explosively. But which kinds of work counted as labor for hire? Did it include the labor of a child bound out for farm work? Of an attorney hired to collect a debt? I argue that what would eventually become the law of employment was, throughout the first half of the nineteenth century, described with diverse labels and as part of multiple different legal topics. Yet as legal writers struggled to decide what counted as hiring, they found new ways to distinguish it from types of labor increasingly defined on separate terms. Slave hiring offers a particularly compelling example, as legal writers in the 1830s and 40s began relabeling these relationships as “bailment,” a legal term referring to one person’s temporary possession of the property of another. Bailment erased the threateningly fuzzy boundary between slave and free servant by comparing a slave to a rented tool or animal. Legal writers also increasingly deemphasized wives’ household labor within marriage, distinguishing it from male waged labor. They did so, in part, by reframing cases regulating wives’ purchases from shared funds. Legal writers struggled, too, with the blurred boundary between the labor relationship of hiring, and the capital investment relationships of partnership and corporation. What was the status, for example, of a grocery store clerk who had been promised a share of the store’s profits: was he partner or employee? In a final chapter, a case study on the use of legal knowledge in New York City courts, I show that these distinctions had consequences. I argue that even lower-level trial courts were profoundly influenced by the world of legal writing, labeling and sorting cases in ways that drew directly and indirectly from legal writers.

My research reveals that employment law and its boundaries were not simply the natural evolution of a changing economy, but rather the product of decades of tentative and sometimes abortive effort by legal writers. Challenging traditional narratives of labor’s shift from “status to contract,” which trace the transition of one group of workers from servitude to employment, I argue instead that making “employment” required exclusion and redefinition.  Legal categories, and the social categories they tracked and influenced, had consequences. The “free labor ideology” that defined northern and southern conflict in the lead-up to the Civil War required, first and foremost, an understanding of free labor as a coherent concept, one directly opposed to slavery. The devaluing and ignoring of unpaid labor within marriage has shaped the lives of women and men in subsequent generations. The abstraction and depersonalization of capital, and its separation from labor, is often understood as one of the most fundamental aspects of capitalism. The boundaries of employment—what counts as work and what doesn’t—have been at the root of profound inequality. In labeling, describing, and sorting the changing world around them, legal writers wrote the terms of these outcomes.