The Last Legally Beaten Servant in America: from Compulsion to Coercion in the American Workplace
| Publication year | 2016 |
A master may by law correct his apprentice or servant . . . .(fn3)
- Blackstone's
The relation of master and slave begins in violence; it must be sustained by violence-the systematic violence of general laws, or the irregular violence of individual caprice.(fn4)
- Theodore Parker, 1830
CONTENTS
INTRODUCTION ..................................................................................... 728
I. PRIVATE RELATIONSHIPS AND CORPORAL PUNISHMENT.................. 739
II. BEATINGS' PURPOSES ...................................................................... 743
1. Nineteenth-Century Treatise Writers: Chastisement as a Common Refrain .......................................................................... 751
2. In the Early Republic, the State Takes the Whip from the Master's Hand:
3. Corporal Punishment Is Deemed Neither Transferable nor Delegable ..................................................................................... 763
4. Whipping Slaves in the Antebellum South to Discipline Them to Work ............................................................................................. 768
5. Whipping Blacks in the Antebellum South to Establish Racial Subjugation .................................................................................. 775
1. Beating Sailors and Soldiers .................................................... 778
2. Beating in Civil Society as Punishment for Crime ................... 781
III. THE SEQUENCE AND ITS LEGACY ................................................... 783
INTRODUCTION
Historically, the law of master-servant allowed corporal punishment. Today it seems strange to contemplate that intentionally inflicted violence was ever an acceptable method of compelling workers to labor in America. Strange as it seems, the practice of striking servants to discipline them was considered a legitimate, implicit part of the relationship between masters and servants.(fn5) Servants, as well as slaves, could be subjected to cuffings and even severe beatings as means of "correction" and compulsion to labor.(fn6) Menial servants, apprentices, and domestic servants could be beaten with hands, fists, straps, sticks, and sometimes whips, all in the name of correction and chastisement.(fn7) Children and wives could also be subject to corporal punishment.(fn8) Certainly there were varying degrees of beating deemed appropriate for different statuses of dependent persons within the household-a slap was the slightest, whippings were severe-yet our legal system authorized the master to impose corporal punishment on all persons subservient to him. Some early statutes even shored up this prerogative by holding a master harmless for injuries done to his servants while in the act of "correcting" them.(fn9)
In sharp contrast, the common law has always considered nonconsensual intentional touching to be tortious. A battery occurs when one person touches another to even the slightest degree, Blackstone wrote.(fn10) Yet, Blackstone added that there was an exception specifically for servants.(fn11) The existence of an employment relationship authorized the master to strike a servant with the very intention of inflicting pain. Masters held a right of chastisement over everyone under their dominion, including those who lived in their households or worked for them.(fn12) Together, the authorization in one chapter and this exception to tort doctrine in another, constitute Blackstone's rule on corporal punishment of servants. Yet servants could never strike their masters. There is no more graphic indicia of legal asymmetry than a rule that authorizes the dominant actor to strike the subordinate and forbids the subordinate from fighting back.(fn13)
This Article will explore the demise of Blackstone's rule in the legal discourse, examining its transformation, and situating that transformation in the context of other social sites where striking a subordinate was deemed acceptable.
In contemporary popular understanding, the fact that our society no longer tolerates whippings-the most extreme form of corporal punishment-is a difference thought to distinguish our more evolved, progressive, and civilized present from our barbarous past.(fn14) Rarely does one hear about a supervisor slapping an employee today, and when it occurs, the incident is sensationally publicized as barbaric and anomalous to our American values and tradition.(fn15) Today there are boards of review for any funded experiment that may conceivably entail pain for human subjects. Though we tend to believe that whipping was the
So when and how did this barbaric practice cease to be legal in America? Who was the last
Since we conventionally equate physical compulsion with slavery, we expect that workplace corporal punishment legally ended in 1865 when slavery was abolished by the Thirteenth Amendment to the United States Constitution.(fn19) But that attribution simplifies and overdraws a much longer, more complex story of how corporal punishment was regulated and how the broad generic authorization became restricted to certain assailants and certain limited classes of servants before its eventual demise. For most American workers, vulnerability to corporal punishment ended decades before the Civil War. Consequently, in overdrawing the connection between the end of corporal punishment and the end of slavery, a lesson is lost.
By taking the longer view, beginning in 1800, one gains a more nuanced insight into how progressive social change occurs.(fn20) By taking the broader view of comparing the legitimacy of workplace corporal punishment to its legitimacy in other settings, one can observe-sometimes by consonance, sometimes by contrast-arguments that differentiate or supplement its legitimacy.
Further, by situating this disciplinary method in a range of social sites, one complicates the American progress meta-narrative as well. Did workplace beatings end because American society as a whole became more civilized and humane? Did the disappearance of this prerogative of authority actually render workers and masters more equal? Did masters actually lose ground and workers gain ground as the practice eroded? Or was the prerogative that masters once enjoyed simply recast in different terms, terms that did not necessarily equalize the disparity of status. Finally, by this examination, a difficult truth is revealed. The evidence revealed here suggests that masters' prerogatives of dominion may simply have assumed different forms without making the relationship more egalitarian.
The sequence seems to be as follows. Workplace corporal punishment was initially the undisputed province of masters. But thereafter in certain jurisdictions, it was regulated, and simultaneously legitimated, by statutes and ordinances that placed conditions upon the masters' authority to impose discipline. Regulations protected some workers, notably indentured servants and apprentices, from excessive abuse by regulating the reasons that justified workplace corporal punishment and the proportionality of the punishment. But as workplace corporal punishment eroded, so too did state regulations of employer overreaching. It was that most extreme form of corporal punishment, whipping, that presented the most obvious subject of regulation. When that practice vanished, the state ceased its regulation of the master's decision to discipline subordinates and the gravity and proportionality of the punishment. The state never resumed focus on the injustices of other forms of workplace punishment such as undue coercion. Beating servants was the states' regulatory anchor-it was where state regulation got its grip-and when whipping servants fell out of favor, there ceased to be any review of a master's unjust exercise of authority.
Thereafter, doctrines of contract obscured the continuing conditions of unequal status(fn21) and subsequently, contract doctrines gave rise to laissez-faire attitudes that allowed masters virtually free reign over their servants to do whatever they wanted so long as they didn't strike them. In the transition, masters regained their position of unfettered power over servants, albeit with different methods of exercising that power. By availing themselves of nonphysical methods, like keeping employees in precarious legal statuses and being able to summarily expel them from the source of their...
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