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Chapter 1

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The American Ideology

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing.

—Abraham Lincoln, 1864

Had Alexis de Tocqueville, miraculously, been able to revisit France and America a scant thirty years after his death in 1859, he might have been tempted to dramatically invert his principal judgments on the two nations. For Tocqueville, self-constituted civic organizations (associations in his vocabulary) figured centrally in distinguishing a buoyant democracy from the twinned specters of suffocating absolutism and excessive individualism. On the one hand, the ubiquity of such agents, commonly labeled the “spirit of volunteerism,” provided for Tocqueville in Democracy in America (1835, 1840) the lodestone of America’s social promise. ¹ On the other hand, as he argued in The Old Regime and the Revolution (1856), an all-powerful, centralized state—reflected in the LeChapelier Law of 1791 banning guilds and other intermediary bodies—snuffed out the lifeblood of liberal democracy in France. “For Tocqueville,” as historian Richard Swedberg summarizes, “the tragedy of the French Revolution was that it inspired freedom but that people had no idea how to go about creating a free society.” ²

And yet, by the late nineteenth century, the French state, while never abandoning its characteristic long reach, had moved markedly away from the suffocating control characteristic of both its absolutist and revolutionary heritage. By the time of the February 1848 Revolution, conservative republicans like Tocqueville were already beginning to positively reappraise worker associations as a possible brace against socialist statism. Over the ensuing decades, a combination of republican and labor/socialist reformers did, in fact, restore an associative dynamic to the body politic. Among the key departures affecting working people were the 1864 law abolishing the crime of “coalition,” the 1884 law legalizing trade unions and associations, an 1892 law facilitating conciliation and arbitration, and the Labor Code of 1910 that officially recognized a legal realm for collective bargaining and trade union action. ³

Still in place today, France’s institutional recognition of Tocqueville’s vaunted intermediary bodies has no parallel in American democracy. Except for business combination through the agency of incorporation, Americans in the industrial era found it more and more difficult under the prevailing laws to “join together” to advance their common economic interest. In particular this was the case for organized workers. Although union membership was generally recognized in principle after Massachusetts Judge Lemuel Shaw’s Commonwealth v. Hunt decision of 1842, in practice such bodies experienced multiple, often crippling, obstacles. By the late nineteenth century, the American national state had yet to adopt the socially interventionist powers of its tricolor counterpart, but neither was it any longer directed by the balance of civic interests that had once impressed Tocqueville. To be sure, Tocqueville himself had early on warned Americans of the inequalities sure to develop within a “manufacturing aristocracy,” but the warning had fallen largely on deaf ears. ⁴ By 1900, few observers would have doubted which country had more succumbed to extreme individualism. ⁵

How and why had the “free society” that enjoyed such a head start come up so short so soon? The question begs further inquiry. This chapter examines the issue through the gap between formal political ideals and lived experience, as centered on working people and their characteristic institutional voice, the labor union. With a continuing nod to the European, and especially the French contrast, it seeks to identify, in a cultural as well as legal-institutional sense, the obstacles that working people have encountered in securing and expanding their share of the American promise.

When asked what he thought about Western civilization, Gandhi reportedly quipped, “it would be a good idea.” A late nineteenth-century American trade unionist might have said the same thing about “free labor.” Initially associated with positive images of opportunity, progress, and liberation, the concept had since become identified with arbitrary dismissals, anti-strike injunctions, and a general loss of control at work that for many workers amounted to what they called “wage slavery.” A common-core conviction, it turned out, only awkwardly covered a developing industrial landscape. How to balance the inheritance of the free-labor ideal with the reality of capitalist economic development at the end of the nineteenth century posed a special challenge to the American labor movement.

Workers in Gilded Age America confronted what we might call the free-labor “double paradox.” The first paradox spoke to the ambivalence of the republican heritage. On the one hand, a legacy of freedoms and rights stemming from the Revolutionary era, an economy of relative labor scarcity, and the Civil War’s extirpation of slavery surrounded the nation-state and its history in a positive or at least hopeful hue for most working people. Much earlier than in Europe, both physically coerced entry into labor and criminal sanctions for leaving it were eradicated among the nominally “free” population. ⁶ The Civil War itself confirmed the free-labor order. Beginning with Lincoln’s rejection of the terms of the Dred Scott case of 1857, a new, national definition of freedom (encapsulated in the Civil War amendments to the Constitution) replaced a patchwork of regional variations, each with its own set of limitations on the basis of age and citizenship status as well as gender and race.

Yet, the very regime that destroyed the South’s slavocracy also enhanced individual rights at the expense of community norms long vouchsafed by resort to common law precedent. Historian William J. Novak thus speaks of the very “invention of American constitutional law” tied to a “legal centralization of state power” that ultimately defined “a wholly new political philosophy” focused on a “radical reconstruction of individual rights.” ⁷ In particular, the newly-created constitutional protections of “due process,” “equal protection,” and “rights of citizens of the United States” would buttress one aspect of free-labor doctrine—the employer’s “freedom of contract”—while simultaneously threatening organized workers’ collective field of action. The upshot was that nearly every attempt by unions to organize or mobilize workers in the era appealed back to nationalist, “free-labor” principles, while at the same time declaiming against immediate conditions that had grown out of the soil nurtured by those very same principles. As historian Christopher Tomlins suggests, the Civil War toppled one “constellation of un/freedom” only to replace it with a new one. ⁸

There was a second layer of irony and complexity to the Gilded Age discourse of free labor. The workers who made the claim on the national free-labor heritage included many who were not even American citizens—and many more only recently so. Herbert Gutman first highlighted this point, noting in one of his influential essays how two Scottish American immigrants—railroad detective Allan Pinkerton and Braidwood, Illinois miners leader Daniel M’Lachlan—made different uses of the same political inheritance. As Gutman noted about another immigrant, New Jersey labor editor Joseph P. McDonnell, who had served as Irish secretary of the Marxist First International before emigrating in the early 1870s, “his rhetoric was bathed in working-class republican ideology[,] saturated by it.” ⁹ On at least two counts, then, we are left to wonder about the hold, and meaning, of free labor ideology in the culture at large.

One colorful, yet not untypical, story illustrates the simultaneously unifying yet divisive nature of free-labor borrowings in the Gilded Age. As Thomas G. Andrews documents in Killing for Coal, the original promise of the West was signaled by the path-breaking railroad engineer and coal owner Williiam J. Palmer, who in the early 1870s identified the mountain regions as a refuge from the “foreign swarms” on the Eastern seaboard, who could be filtered out and prepared “by a gradual process for coming to the inner temple of Americanism out in Colorado, where Republican institutions will be maintained in pristine purity.” By the 1890s, however, the coal miners themselves had tailored Palmer’s message to their own immediate and increasingly desperate situation. Facing wage cuts and the overwhelming power of the Colorado Fuel and Iron Company amid a bitter national strike in 1894, some two thousand miners marched “behind American flags and brass bands.” In the same spirit, a state United Mine Workers organizer rebuked operators for “having taken from [the colliers] their best blood and their American privilege of earning an honest livelihood.” The strikers, he insisted, “stood by the Declaration of Independence” and its guarantee of “life, liberty and the pursuit of happiness.” At a moment of extreme peril, a workers’ community comprising twenty-nine nationality groups thus found common cause in rights they attributed to the American Revolution. Explained one anonymous orator, “Patriots assembled on the Boston Commons … and dared [the British] to oppress them longer, and I say to you that they were men from every civilized land … and they raised that flag and said ‘under that flag we will be free men or under that flag you may bury our dead bodies.’ That flag, gentlemen, waves still.’ ” When their strike was ultimately defeated by a combination of injunctions and strikebreakers, union leaders proclaimed that “Liberty crushed to earth will rise again.” ¹⁰

How did it come to pass that the same discursive system of political and economic “liberty” could at once unite the post-Civil War nation and also bitterly divide it on class lines? Historian Eric Foner offers a convincing explanation. Business, economists, and leading newspapers, he suggests, jumped on an “emergent market definition of economic freedom,” emphasizing the benefits of marketplace logic, the laborer’s “juridical freedom” and the “idea of contract.” ¹¹ Already by the mid-nineteenth century, employment relations, as regulated by the states, were regularly subsumed into the hierarchical discourse of master-and-servant relationships ¹² The trend took on enhanced meaning beginning with Stephen J. Field’s famous dissent in the Slaughter-House cases in 1873, which identified the Fourteenth Amendment as a guarantor of individual freedom of contract, calling it a basic “right of free labor.” Infringements on just this “right” soon became the basis for the manifold legal injunctions against strikes and boycotts. As if “contract rights” were not enough, moreover, business-friendly exponents of the “science” of social Darwinism like William Graham Sumner equally helped to explain social inequality and sanction the success of the successful. ¹³

An enduring, early twentieth-century addition to the employers’ lexicon of free labor arrived with the concept of the “right-to-work.” In one of the first uses of the phrase, muckraking journalist Ray Stannard Baker took up the cudgels for the estimated 17,000 men who defied union orders and threats to continue work during the 1902 anthracite strike (see Chapter 2). As Baker quoted a nonstriking mining engineer: “I have a right to work when I like, for what I like, and for whom I like.” It was an attitude, quickly surrounded by legal restrictions on picketing, that helped turn back labor’s first great industrial surge, and it was soon re-outfitted as the “American Plan” to safeguard the open shop post-World War I and regularly redeployed thereafter. ¹⁴

Workers, as Foner (like Herbert Gutman before him) recognized, equally “spoke the language of free labor.” Yet, it is perhaps more exact to say that Labor spoke multiple dialects of that language. As late as the 1860s, a self-consciously free-labor advocate like President Abraham Lincoln could imagine the industrial system as one where a “prudent, penniless beginner in the world labors for wages awhile, saves a surplus with which to buy tools or land for himself; then labors on his own account another while, and at length hires another new beginner to help him.” Yet, within a decade, the unmistakable evidence of industrial hierarchy—most evident in the expansion of mines and railroads—belied such optimistic scenarios. Already by 1870, as confirmed by the census enumeration, two-thirds of those engaged in the marketplace were hirelings. ¹⁵ Many critics saw the dawning system of industrial capitalism as one of systemic, liberty-denying oppression. Their central argument, repeatedly made by leaders and publicists within the late nineteenth-century labor movement, closely aligned a budding working-class identity with the strident free-labor versus slavery theme of the Civil War. Precisely because of the “immediate reality” of slavery, the economic dependence of wage earners lent “special power” to a sense that wage work was less than free. ¹⁶

Perhaps the clearest exposition of the wage-system-as-slavery critique in America came from Boston machinist and eight-hour reformer Ira Steward. How much, he rhetorically asked, was “the anti-slavery idea” worth, “without the power to exercise it”? Given the conditions of industrial employment, there was little “free” about free labor. “The laborer’s commodity,” he elaborated, “perishes every day beyond the possibility of recovery. He must sell today’s labor today, or never.” Only by interrupting the social and political power of the employer (in Steward’s mind via the legislated shorter day) could freedom be restored to the individual laborer. ¹⁷

The wage-slavery argument, linking as it did the legacies of yeoman democracy and abolitionist thought, demanded social alternatives. So it was that the mass movements of the late nineteenth century slid easily (as in the case of the Knights of Labor) into talk of the “abolition of the wages system,” or (as in the case of the People’s Party) a demand for “industrial freedom” that required the structural dismantling of a society of “tramps and millionaires.” ¹⁸ Sounding a stark contradiction between individual political liberty and industrial employment, Knights leader George E. McNeill proclaimed, “We declare an inevitable and irresistible conflict between the wage-system of labor and the republican system of government.” ¹⁹ In each case these radical reformers looked to a combination of group self-activity (whether through labor unions, farmers’ alliances, and/or producer cooperatives) and ameliorative legislation to create, as the preamble to the Knights’ constitution put it in 1885, a necessary “check … upon unjust accumulation, and the power for evil of aggregated wealth.” ²⁰ Committed to a republican commonwealth in which self-governing citizens would, through the power of the franchise, keep monopoly power and exploitation at bay, the Knights of Labor and their allies disdained individual liberty of contract doctrine as a tool of “wage slavery.” ²¹

Despite such rhetorical swagger, in practice the nineteenth-century labor movement regularly jockeyed between conciliatory and even individual strategies of advancement within the wage system versus more systemic attacks on the putative source of their oppression. Partly it was a matter of varied and evolving calculations of group interest. For decades many of the most skilled workers, for example, as represented by self-styled “respectable” craft unions, continued to subscribe to the tenets of what others now viewed as free-labor mythology. The railroad brotherhoods were perhaps the quintessential representatives of this perspective. “Sobriety, Benevolence, and Industry” proclaimed the masthead of the Brotherhood of Locomotive Firemen. Even in the aftermath of the great railroad riots of 1877 in which he took no part, the young Eugene V. Debs, editor of the Locomotive Firemen’s Magazine, could still describe the railroad corporation as “the architect of progress” and anticipate a harmonious relationship with local banker and regional railroad owner William Riley McKeen. ²²

Soon, economic concentration and deteriorating conditions of work forced railwaymen, via their brotherhoods, to revise their beliefs. ²³ The contracts to which the skilled railroaders subscribed were thus but the follow-up stage to the earlier practice among artisans and craft workers of setting their own standards of wages and hours and enforcing such standards unilaterally (not by negotiation or contract with the boss) through the closed shop. As mechanization took command and the autonomous conditions of craft control weakened, skilled workers clung to job control, as historian David Montgomery most assiduously demonstrated, through negotiated trade agreements. ²⁴

Interestingly, it was the appeal to individual character—and in particular the safeguarding of one’s “manliness,” the repository of traditional artisan virtue—that in many cases brought craft workers to the battlements of the era’s Great Upheaval. Reflecting on the trials of the Knights of Labor amid the Gould Strike of 1885, Debs displayed a newly minted radical social critique in an editorial entitled, “Art Thou a Man?,” in which he defended the rights inherent in a worker’s manhood against the power of monopoly. ²⁵ In important respects, the erosion of earlier free-labor idealism seems to have been sparked by male worker fears of dependency, linked at once to economic change and to a gender shift in the marketplace. As Alice Kessler-Harris has elaborated, women’s employment—whether forced or voluntary—posed a cultural problem: “just as men’s free labor was predicated on their capacity to support a family, so women’s was assumed to sustain the family labor of men… . For women’s wage work to threaten the male’s capacity to be free was a problem just as it was a problem if women’s wage work undermined the capacity of either men or women to be effective family members.” ²⁶ At best, therefore, women’s discretionary income might supplement the male breadwinner’s earnings. ²⁷ The control and autonomy that had once clearly separated at least the skilled craftsman from the dependency of slaves, women, and lowly laborers was, for many, now under siege. In such circumstances, resort to the male breadwinner ideal—sometimes in a defensive and politically conservative way—defined the arena of grievance more powerfully than mere economic arguments. It was on such a basis, for example, that craft unions commonly excluded women members and that railway brotherhoods long established separate seniority lists and other mechanisms of exclusion aimed at African American workers. ²⁸

Beyond a sometimes confusing resort to a cross-class political inheritance, workers’ ambivalence about the free-labor marketplace was also conceptual. What was the wage-system, exactly? And, more to the point, what were its most egregious, unacceptable features? The fact is, beneath the arguments of both free-labor market critics like Ira Steward and apologists like Supreme Court Justice Stephen A. Field beckoned a wide, and messier, territory of workaday experience. The issue recalls the French textile trade in the late eighteenth and early nineteenth centuries. As historian William Reddy noted more generally about the English and French artisan trades in these years, the “catastrophes” that generally befell them “resembled hardly at all what the effects of a free market would look like… . No market for labor was ever created in either of these countries. In this crucial sense the market system failed to appear.” ²⁹ As a result, two illusions developed within the new nineteenth-century market culture: “that gain was the basic human motive and that unregulated competition brought maximum progress.” This dual set of assumptions was rather quickly accepted as normative by both defenders of advancing industrial capitalism and their opponents. Yet reality on the ground, at least in the French textile industry, did not square with its ideological categorization. Even as the antagonists gravitated across the nineteenth century toward a common embrace of a “market model” of human motivation and behavior, the result, Reddy argues, left both contemporaries and historians with an “extremely over-simplified view” of contemporary material conditions and labor relations as actually experienced. ³⁰

Like the French textile trade, Gilded Age industrial employment was also riddled with “deformations” of market culture—or what we might synonymously label free-labor culture within the competitive wage system. Indeed, across the spectrum of industrial employment, it is hard to find a sector that did not combine a significant amount of coercion, subterfuge, or other extra-economic sanctions with competitive free-labor competition for jobs and wages. Similarly, it was often these very deformations rather than the secular logic of the wage-system itself that most readily drew the ire of American workers.

Some of the most common—and notorious—cases of deformation derived from the practice of contract labor. A clear warning signal arrived with the near-decade-long construction of the transcontinental railroad. Completed four years after the triumph of the “free-labor” North in the Civil War, the railroad vouchsafed the strength of the Union, but on the backs of two equally exploited, if unequally cursed, groups of immigrant stoop laborers: the Irish working from the East and the Chinese working from the West. In 1863 alone, nearly 100,000 Irish laborers accepted pacts with a combination of U.S. military and emigration society recruiters for steamship tickets. Among those not immediately outfitted in Union uniforms, few escaped either the steamship or the holding pens at New York City’s Castle Garden without signing a labor contract. Beginning in 1864, the federal government (concerned with the drain of manpower into the army) itself promised for the first time to enforce labor contracts made on foreign soil. Almost immediately, employers took advantage of the situation to break strikes with directly imported laborers. ³¹

The confinement of the Chinese was yet more conspicuous, and notorious. In the midst of devastating Chinese civil wars across the 1850s and 1860s, a combination of forced (or “coolie”) labor and the lure of voluntary, cheap steerage fares on steamship routes from Hong Kong to San Francisco accounted for a huge surge of labor migrants on long-term contracts bound for the railroad camps. The Hui-Kuan, aka the Chinese Six Companies, acted as effective padrones over the immigrant workforce, setting up contracts and effectively enforcing them on worker and railroad alike. In any case, the combination of high death rates, low wages, and constraining contracts (the so-called credit-ticket system) easily opened the Chinese labor experiment to charges of “slavery,” which, combined with racist stereotypes, quickly led to campaigns to exclude the Chinese from competition with “white” workers as well as to forbid their further entry into the country altogether. From such origins of ethnic marginalization emerged one of the sorriest chapters of American labor history, one in which even the generally egalitarian Knights of Labor joined with a vengeance.

The switch from a campaign against importation of Chinese, along with other contract laborers, to one against Chinese immigration tout court developed only in stages, and with substantial misgivings within the organized labor community. Throughout the 1860s, for example, William Sylvis, iron molders’ and National Labor Union president and leader of the national campaign against contract labor, insisted that the imported workers “should not be spurned and treated as enemies,” since “they are only the dupes of the wily agents.” Even as Dennis Kearney made Chinese exclusion a touchstone of the broader-based Workingmen’s Party platform in California—and as other powerful figures like Maine’s Sen. James G. Blaine proclaimed the incompatibility of the “man who must have beef and bread, and would prefer beer” and the “man who can live on rice”—most of organized labor held back, limiting their policy prescriptions to a ban on all foreign laborers under contract. Typical, for a time, were the reported remarks of New York Central Labor Union President Robert Blissert: “He did not think it right to forbid any of God’s creatures from coming to America. What [he] opposed was the Importation of Slaves.” Alas, by 1880, fearing the arrival of a mass exodus from the “powder keg atmosphere” of San Francisco, even labor radicals like Detroit’s Richard Trevellick and Chicago’s Albert Parsons had succumbed to the anti-Chinese fever. ³²

Related to the sins of contract labor for men was the notorious subcontracting system associated with the heavily female garment “sweatshop.” A chain of subcontracting—with each link in the chain determined to squeeze a profit from the barest margins of productivity—accounted for the sense of exploitation associated with sweating. In abominable conditions, women toiled, as turn-of-the-century journalist Eva McDonald Valesh reported, “under a cunningly devised slavery, until death mercifully sets them free.” Indeed, from the turn of the century, the distinctive structure of the urban garment shop—in particular the centrality of the contractor in relation to an immigrant labor force—evoked initial parallels to the critique of “coolieism” on the West Coast. Most important, public blame for such un-American practice for a time swung precariously between employers and workers themselves. Concerns about new immigrant cleanliness, criminality, and health threatened to downgrade the status of Jews as a whole on the contemporary “evolutionary ladder.” In 1905, the commissioner general of immigration thus generically condemned Jewish immigrants as “decrepit men and women.” ³³

What saved the Jews the opprobrium visited on the Chinese was the deflection of the discourse of immigrant “degeneracy” to one of environmental degradation. In the case of the Russian Jews, a host of agents—German Jews, middle-class public-health and reform advocates, as well as the contemporary labor movement—effectively identified industrial capitalism (as exemplified by the sweatshop), not race, as the culprit. In the ensuing discourse of factory inspection, as championed by the International Ladies’ Garment Workers’ Union, the “modern” factory was contrasted to the sweatshop as a means to improve sanitation, eliminate degrading homework, and lift the overall cultural profile of the immigrant community. In the factory, or “model shop” as articulated by the industry’s union-management Joint Board of Sanitary Control after 1910, “the boss remained, but healthy male workers earned a family wage, while enjoying a host of comforts and conveniences… . Where the sweatshop enfeebled, the model shop cured.” Restore the working-class family’s “independence”—as effected by the male provider—the argument suggested, and the wolf of unfreedom could be kept at the door. It is worth noting that the “sweatshop debate” helped to cut short a more systemic discussion of the iniquities of free labor and the free contract. With proper control—in particular a place for unions in the negotiation of wages and conditions—workers, it seemed, could transform the sweatshop from Exhibit A of capitalistic iniquity into “a correctable problem of poor management.” ³⁴

After intense lobbying by the Knights of Labor and other labor reformers, Congress first systematically grappled with the problem of contract labor in the 1885 Foran Act, which specified fines on labor importers as well as immediate deportation of all workers brought to America under contract. Yet the act proved to be riddled with contradictions inherent in free-labor thought itself. Reflecting an all-out skepticism toward labor recruitment, the law voided “all contracts” to import foreign workers, making no distinction between voluntary and involuntary service. Absent a work contract, however, the would-be immigrant laborer arriving at Castle Garden faced a bind: how could he prove he would not become a public charge (another grounds for deportation)? Parsing legislative intent, the courts tended to create their own, highly racialized distinctions between “ignorant” or “coerced” migrants and individuals who had clearly come on their own, informed volition. What one government investigator called a “curious contradiction” in immigration law was only fitfully resolved by subsequent legislation specifically targeting the immigrant padrone (or labor contractor) for prosecution and exempting skilled workers recruited to fill designated industrial needs. ³⁵ By emphasizing the moral depravity of the padrone preying on helpless (especially Italian) child laborers, moreover, the administrators of the Foran Act slowly turned it away from its original intent. From “a critique of the doctrine of voluntary contract,” argues historian Gunther Peck, it became “an instrument of its ideological defense.” Meanwhile, the problem of immigrant contract labor waned on its own. Free immigration itself proved quite plentiful (at least until drastic immigration restriction in 1924), and corporate personnel managers replaced padrones in supplying industry with a tractable labor force. ³⁶

A similar preoccupation—at least among middle-class labor reformers—with immoral recruitment and hiring practices focused on female domestic workers. In New York City, for example, as historian Vanessa H. May has documented, Frances Kellor and the National Municipal League focused particularly on “tenement” employment agencies, effectively unregulated family-based enterprises, which served as go-betweens to “respectable” middle-class households. These unscrupulous agents, reformers alleged, lured young immigrant and African American arrivals to the city with offers of employment, at once charging the domestics exorbitant fees and exposing their employers to a “class of diseased, paupers, criminals, and degenerates.” A 1904 employment agency law, by setting licensing fees and “business-like” standards on the industry, sought to drive the small-fry recruiters out of business; the law, alas, did nothing for the wages and working conditions of domestic workers themselves. ³⁷

From the perspective of Gilded Age workers, the most noxious form of labor contracting probably derived from the employment of prisoners to compete with or supplant free labor in the marketplace. Characteristic of the sensibility of the time was the 1869 plank of the National Labor Reform Party, pairing the demand for abolition of the importation of “a servile race”—that is, immigrant contract labor—with abolition of the “system of contract labor in our prisons.” ³⁸ The latter issue came with longer roots. As early as the “Auburn system” in the 1820s, New York and other states employed convicts in numerous trades both for reasons of economy and therapeutic self-discipline. Fearing direct competition from such enterprise, mechanics gathered in protest as early as the 1830s and forced the New York state legislature to set various limits on the prison trades. ³⁹ Given wartime strains on the state budget, New York again loosened its regulations in the 1860s—a pattern for other cash-poor states that would reach its most notorious expression in the South’s “convict lease” system. Here, a prison population that was becoming overwhelmingly black was systematically rented out to private employers on railroads, mines, and plantations with little public supervision or monitoring of exploding casualty rates. ⁴⁰

In the North, use of Sing Sing laborers to try to break the iron molders’ union turned the issue into organized labor’s cause célèbre in the immediate post-Civil War years. Not surprisingly, when the labor movement generally revived in the 1880s, curtailing convict labor again turned up near the top of its political agenda. In the original 1878 preamble to its constitution (and continuing across several constitutional revisions) the Knights of Labor declared its intent “to abolish the system of letting out by contract the labor of convicts in our prisons and reformatory institutions.” ⁴¹ Anti-convict labor laws spread across the northern industrial belt in the 1880s and 1890s. Long resistant to such pressures, even the southern states formally responded to reform campaigns after the turn of the century. By 1928, Alabama, the last holdout, had legally foresworn convict leasing, even as direct public employment—as in roadside chain gangs—developed in its stead. ⁴²

Unfortunately, the gap between state penal-reform codes and the reality on the ground persisted for decades. Heartrending historical accounts of the brutalities enacted in forced labor camps—a “neo-slavery” applied to over one hundred thousand workers, many simply arrested for vagrancy, from the 1870s until World War II—provide the starkest proof of the limits of statutes left on their own. ⁴³ Green Cottenham, for example, a son of Alabama ex-slaves, was charged and convicted of vagrancy in 1908, then remanded to a Birmingham coal mine under the charge of the Tennessee Coal, Iron & Railroad Company; there, in the company of “more than a thousand other black men,” he was “chained inside a long wooden barrack at night and required to spend nearly every waking hour digging and loading coal.” ⁴⁴ Brutally and baldly coerced labor thus served in the South as a constant threat to hold over the heads of the poorest of free laborers. Not surprisingly, given the notoriety of the issue at the time, the Knights of Labor identified abolition of convict lease among its fifteen prime “objectives” in 1878. Notably, however, the Knights’ convict labor plank was only one of several demands that honed in on what we might consider ‘distortions’ of the labor market. A call for mechanics’ lien legislation (giving workers a priority over other creditors in employer debt settlements) struck at employers’ asymmetrical power in workplace relationships. “Abolishment” of the “contract system” on public works projects aimed at once for transparency in municipal and state hiring. Finally, dual demands for an end to child labor in workshops, mines, and factories on the one hand and “equal pay for equal work” for both sexes on the other represented further blows for market neutrality—that is, a marketplace that provided an equal playing field for all adult workers. ⁴⁵

For years after the Knights’ era, it is worth noting that what workers took to be extra-market coercions employed by employers occupied a prime spot in fueling labor rage and protests. Prime examples were the grievances against coal companies for practicing short-weighing or imposing scrip and company store systems or other forms of wage theft on their employees. ⁴⁶ Similarly, various studies have noted the flashpoint of struggle occasioned by a variety of directly coercive practices ranging from what appeared to be arbitrary layoffs and dismissals to the use of private police forces to control of access to company property to the denial of bathroom breaks on the job. ⁴⁷ Even as the master and servant laws that compelled a young female textile worker to a twelve-month confinement in the mill may have been breached (at least in the statutes of the free states) by mid-century, the underlying principle of coercion, notes David Montgomery, continually “reappeared in court decisions” and was reinforced as well by “draconic vagrancy laws that made it a crime not to have a job.” ⁴⁸ All such abuses were grist for the mill of labor reformers, but in exposing them workers themselves were inclined to single out contractual coercion as an illegitimate exception to free labor norms.

But, was not such scrupulous attention to marketplace abuses at odds, at least philosophically, with an out-and-out rejection of the free-labor contract altogether, as sounded in the rhetoric of labor radicals like Ira Steward and George McNeill? In short, even if the workers (by legislation or self-action as in the building of cooperatives) accomplished all fifteen of the Knights of Labor’s official objectives of 1878, or even their 1885 expanded list of twenty-two demands, would they not still be operating, at least primarily, within a wage system of labor? When push came to shove, therefore, abstractions like “wage labor,” “free labor,” and “free contract” paled in significance to the actual pushing and shoving on the ground that determined how such concepts affected real men and women. It is a point that demands concrete illustration.

In her recent revaluation of the conflicts leading up to the Great Southwest Strike of 1886, historian Theresa A. Case presents labor mobilization as an example of robust, grassroots republicanism that for a limited time united an otherwise disparate railroad workforce. Union organizers initially overcame a significant black-white racial division (and determination to preserve their privileged status on the part of white workers) as well as internal hierarchies among both shopmen and the running trades. All the more impressive, then, that resistance to the recession-era wage cuts of Jay Gould could weld the men on a network of southwestern roads (including the Wabash, the Missouri, Kansas, and Texas, and Missouri Pacific lines) into effective fighting units across 1885 and 1886 under the aegis of the Knights of Labor, and particularly the Martin Irons-led District 101. ⁴⁹

Yet, as Case indicates, the labor forces that did battle against Gould’s railroad empire also seized on threats of the potential employment of Chinese and convict workers to burnish the movement’s free-labor message. The actual presence of these allegedly “unfree” competitors was rather minimal. Still, the Central Pacific Railroad had turned to Chinese laborers in the 1860s, some Texas newspapers had proposed using them as a goad to spur the efficiency of emancipated slaves, and Gould had replaced striking coal miners with Chinese in an 1874 dispute. Amid rising fears, moreover, the wives of railwaymen in Texas had in several instances boycotted Chinese laundries because they competed with white washerwomen. Similarly, while most Texas and Arkansas convicts were overwhelmingly leased to farms and plantations, the railroads also hired a trickle of white prisoners for odd jobs. ⁵⁰

In the circumstances of spreading wage and job cuts and a manipulative and cunning management from afar, however, the “dread of dependence” was palpable for both the laboring and small merchant class of the region. So it was that the strikers, white and black, initially enjoyed strong support from the local press and elected officials of surrounding communities. In Sedalia, Missouri, center of strike strategy, the workers formed their own guard unit to protect idled railroad property, and in Parsons, Kansas, the local paper found nothing wrong with union men keeping would-be strike-breaking “ ‘tramps’ away from the shops.” ⁵¹ In both March and September 1885, Knights of Labor mobilizations brought the Gould railway network to heel: in both cases railroad management sat down with labor representatives, withdrew cuts, and rehired fired union stalwarts for what appeared to be an extended commitment to industrial peace. The same period witnessed a gathering independent labor politics in communities around the railroad region. Altogether, the workers’ actions bespoke a most buoyant expansion of free labor ideals: “these men conceived of “free labor” as at once economic, cultural, and political—freedom meant dignity, stability, a fair return for labor, a producer’s claim on the workplace itself, and the opportunity to provide for families and to be public actors as worker citizens.” ⁵²

Yet the constraints on the free-labor express soon came to the fore. When Gould’s general manager, R. M. Hoxie, turned away from arbitration and openly dared the Knights to break a court injunction imposed on actions against a road in receivership, he punctured the broad but shallow base behind the industrial upheaval. As court orders cleared strikers from shops and workhouses, the skilled railway brotherhoods deserted striking trainmen and shopmen. Then, when Gould himself avoided a face-to-face encounter with General Master Workman Terence Powderly in March 1886, the union forces faced a cruel dilemma: back off or up the ante of confrontation by means of a wider walkout and sympathy actions. When Martin Irons and the District 101 leadership chose the latter option, they split not only the earlier cross-class regional coalition behind the strikers but the Knights of Labor as a whole. Violent seizures of trains, armed exchanges with strikebreakers and company detectives, and ultimate resort to the state militia in Ft. Worth, Parsons, and East St. Louis punctuated a month of industrial turmoil that ended in a crushing defeat of the union forces. ⁵³ Though the railroad upheavals left an opening for new, biracial, pre-populist political coalitions across the region, they left scant legacy of workplace organization. ⁵⁴

In the end, the violence of the Southwest Strike exposed the contradiction between “free labor” as interpreted by workers themselves and “freedom of contract” as interpreted by the courts. By the midpoint of the southwestern railway strikes, the courts were interpreting even peaceful efforts to curtail strikebreaking as a threat to the freedom of contract and had responded to requests for injunctive relief beyond an initial focus on roads that were bankrupt and under the supervision of federal judges. There was, in short, nothing logically “inherent” about the expanded power of the judiciary: up to 1886, courts had been more self-restrictive in their interventions; beginning with the Southwest Strike, they became much more sympathetic to employer complainants. ⁵⁵

There is no denying the tensions that Gilded Age workers experienced with the application of free-labor doctrines to labor-management relations. Still, it was not just the justices who embraced the “sanctity” of the employment contract. Organized labor, too, for the most part did not reject but rather embraced the labor contract as a vessel of influence in the labor market. In its view, the legalism of contracts needed only to be extended to the group rather than individual rights of employees. As union-friendly legal giant Louis Brandeis explained three years before his appointment to the Supreme Court: “The employee must have as much power and as much freedom in making a contract with the employer as the employer has in making a contract with him, and for that purpose it is necessary that employees should be bound together in some union; because the individual employee is ordinarily helpless against the employer.” ⁵⁶ Whatever its specific terms, the contract explicitly conferred union recognition, the crux of legitimacy. That it served just that purpose was all too apparent, for example, to Charles Francis Adams, president of the Union Pacific Railroad. In earlier philosophical musings, Adams had allowed that there needed to be some adjustments to allow the “representative, republican system of government” to catch up to the “corporate industrial system,” and he even accepted a role for government in tempering railroad monopolies and unfair market competition. By 1891, however, he was notably bristling about the countervailing power and “excessive regulation” that railroad unionists had brought to bear on his business by substituting collective bargaining for the individual employment contract. ⁵⁷

The coal industry proved the prime site for the development of what historian David Brody has called “the logic of workplace contractualism”; nowhere else were the “jealously held prerogatives of American management so constrained by contractually defined job rights.” As early as the 1860s, Pennsylvania anthracite miners had shrewdly embraced “market unionism,” calculatingly using work stoppages to reduce the coal supply and thus drive up prices. The movement notched a major breakthrough with the first “joint conference” in the bituminous fields in 1897 that established competitive wage scales across differentiated regions (except for the unions’ Achilles heel of West Virginia). It was precisely the contract system—at least when sustained by a militant rank and file—whom a latter-day Wobbly credited for turning “plain, humble, submissive [creatures] into … men.” ⁵⁸

Perhaps the other most famous embrace of the labor contract and market unionism—this at the other end of the industrial hierarchy from coal miners—occurred among turn-of-the-century garment workers. In New York City the predominantly female shirtwaist strike of 1909 (or “Uprising of the Twenty Thousand”) combined with an industry-wide Cloakmakers’ strike the following year produced the Protocol of Peace—rationalizing a chaotic industry with standardized wages, hours, and working conditions, and ultimately corralling the larger manufacturers into a deal akin to those hatched by the mineworkers. Gaining a more stable and efficient labor force in exchange for higher wages, the major clothing manufacturers for an extended period bought into a system that historian Colin Gordon calls “regulatory unionism,” a system that contemporary labor journalist Benjamin Stolberg defined as “a sort of joint industrial syndicate of boss and worker.” ⁵⁹

Finally, there was likely no more thorough—or inventive—labor adaptation of free-market principles than that of American merchant seamen, as reflected in their venerable leader Andrew Furuseth and his signature accomplishment, the Merchant Seamen’s Act of 1915 (aka La Follette Act). The “unfreedom” of the seamen—in particular, their lack of the right to quit during the course of a contract as well as their susceptibility to physical punishment by ship captains—propelled the public face of the desired maritime labor reforms. But here was a case where workers skipped nimbly from throwing off the last vestiges of industrial “vassalage” to a favored place within the global wage system, and all in the name of “free labor.”

To elaborate, for decades, U.S. seamen watched their numbers on the high seas plummet as merchants (including American ones) took advantage of less-regulated and lower-waged foreign-flag vessels through which to deliver international commerce. In the name of human rights (thus most famously ending criminal punishments for desertion), the La Follette Act consciously aimed to “free” maritime workers worldwide from the grip of segmented coercive national labor markets by applying its provisions to any ship of whatever flag that docked in a U.S. port. By its provisions, any sailor (of whatever nationality) could quit his ship in port and demand half-wages through U.S. courts while he sought his next contract on board a ship presumably paying the highest prevailing rates for maritime labor. As union advocates figured it, if “sea labor,” like any other commodity, were allowed to float—freed from draconian penalties against desertion—at market price, then all would-be employers worldwide would have to pay that price. “The remedy,” argued the Sailors’ Union in 1914, “is to set free the economic laws governing wages. ⁶⁰ Yet, by way of remedy, a removal of the desertion penalty on U.S. ships alone would not do the trick. With average U.S. sailor wages nearly $40/month compared to British rates at $20–25, Swedes at $17 and Chinese at $7–9, restricted U.S.-only regulations would likely utterly drive U.S. ships from the sea. ⁶¹ Apply the new standards to foreign ships—what one La Follette bill partisan called a “free seas” principle—and you could expect a gradual convergence of all sea wages at a higher rate. ⁶² However mixed the returns (the subject necessarily of another study) from what was appropriately conceived at the time as a “radical” piece of legislation, the point here is that organized workers themselves were making their own confident, if selective, use of market-oriented thinking.

One way to read free-labor ideology in the Long Gilded Age, then, might be in the frame of what Eric Hobsbawm called “learning of the rules of the game.” Long-established notions of a “fair wage” were transformed as workers “recognized the nature of the trade cycle and increasingly demanded “what the traffic would bear.” ⁶³ The era began with widespread suspicion of and desperate search for alternatives to the rapidly emerging wage system of labor, as arbitrated at once by market conditions and the coercive hand of employers. Over time, by this reading, labor accepted the inevitable, giving up a direct challenge to market and managerial hegemony in favor of incremental gains, registered by the most skilled or at least well-organized sectors of the working class.

Yet, in approaching the subject from the “bottom up,” or at least through the eyes of contemporary labor actors, such a functionalist scenario seems inadequate. Workers as well as capitalists were experimenting in these years with the exercise of various kinds of leverage or checks and balances over the operations of labor-management relations and the larger social welfare. Free wage labor, per se, may have been largely accepted early on as a given by all parties, but that admission settled little that was significant for workers’ lives. First, relations in the labor marketplace were often strained and complicated by manifest manipulations and unfreedoms—viz. contract labor, convict labor, company stores, and so on. Second, the “voluntary contract” at the essence of free labor might or might not serve and advance the workers’ own welfare (and indeed collective power), depending on the political and economic context in which it was invoked. Contractual discipline could effectively shackle or liberate working people, depending on the context. Freedom, we might say, was in the hand as well as the eye of the beholder. In the name of freedom, then, late nineteenth-century Americans were regularly fighting about power and economic security. The latter themes have remained well-nigh permanent issues (if eventually deprived of the soul-stirring force attached to the freedom concept). When contemporaries—ranging from industrialists and conservative jurists to trade unionists and socialist agitators—declared the system of “free labor” to be at risk from the hands of one antagonist or another, they were engaging a peculiarly American intellectual and political argument. ⁶⁴

But might we not venture farther by way of assessment? All nations, Benedict Anderson has famously argued, construct their identity around an “imagined community” “conceived as a deep, horizontal comradeship.” ⁶⁵ Benedict’s younger sibling Perry Anderson adds a darker tinge to the evaluation of such projects by resurrecting an older concept of national mystification. Just as Marx and Engels in The German Ideology identified, in the writings of Hegel and Feuerbach, a false idealism that masked the true economic relations of society, Perry Anderson dissects an “Indian ideology,” wherein Hindu chauvinism and even vestigial caste thinking masquerade as universalism within outwardly secular, universalist, and even socialist ideals. ⁶⁶ Given the chapter’s argument thus far, it is perhaps no great leap to reach for an equivalent “American ideology.” As a far-reaching distortion of social reality that nevertheless enjoys a strong grip on the national political and intellectual imagination, American free labor seems nicely to fill the bill. At once emancipatory in relation to individual economic rights and choices (at least at a formal level), it has simultaneously helped to narrow the options for communal and collective national standards.

At least from the comparative historical perspective with which we began, “freedom” in America has been asked to carry an awfully heavy load. In France, for example, at about the same time as the creation of the American constitutional order of individual rights, even the bourgeois leaders of the political center, were being pushed to adopt a comparatively expansive set of national welfare measures. It was a battle, as one historian has put it, “between liberty and obligation,” in which (at least as compared to the U.S.) there was substantial cultural capital on the side of the second proposition. ⁶⁷ In fairness, the forces pushing for social “solidarism”—a term that became something of a mantra for expanding state functions in the Third Republic (1870–1940)—did not all emanate from the ideological left. A perceived demographic crisis buttressing “pronatalist” support for family welfare, Catholic social doctrines, and a “social defense” to ward off socialist revolution all played a role. ⁶⁸ To put it perhaps too crudely, “Fraternité” and “Égalité” in the French revolutionary inheritance helped to balance the cultural resonance of “Liberté.”

Curiously, one factor consistently cited as a buttress to French welfarism also possessed strong American bona fides. The eminent social historian Philip Nord especially credits the voluntarist associations and mutual-aid associations—including Masonic lodges and trade unions—for building a culture of “republican idealism” encompassing “human solidarity” and ultimately the infrastructure of state-based welfarism. ⁶⁹ The American nineteenth century, of course, did not lack for either fraternalism or larger mutualist, self-help networks. The Knights of Labor, for example, both imitated and overlapped with the lodge structure spread across the surrounding social landscape. As an early twentieth-century account put it, “Class consciousness, American style … expressed itself through the characteristic medium of social clubs and secret orders. The native technique of reform is, first of all, to demand three raps and a high sign.” ⁷⁰ Yet, somehow, in ways still inadequately explored by historians, the mutualist path in the U.S. gave way less to state than to private, commercially oriented institutions. ⁷¹

The paradox attending American free labor comes more clearly into view. We see at once how it remained a broad-based ideal in a nation politically attentive to freedoms precisely because so much coercion, double-dealing, and subterfuge still existed in the employment relationship. Campaigns to eliminate “distortions” clouding fair-dealing in a market-place of buyers and sellers of labor—whether it be unfair competition from convicts, duplicitous weighing of coal, or coercive checks on the right-to-quit affecting seamen and contract laborers—attracted sure-fire attention from organized labor and the larger public. Second, identification with “free labor” status served American workers, however imperfectly, as a badge of common interest and identity. Encompassing diverse occupations, skill, and income levels that otherwise experienced quite specific, sometimes even internally conflicting grievances, America’s free laborers also bridged diverse ethnic and racial groups. Moreover, the pride in free-labor identity made it a harbor for new immigrants (even noncitizens) as well as a potent political stick to wave at class enemies as would-be tyrants who would deprive Americans of their birthright of freedom: this was our source of “deep, horizontal comradeship.”

At the same time, however, the labor movement paid a price for trusting so ardently to its own version of Freedom Road. Not only did its industrial and political antagonists lay continuous claim to alternate interpretations of the same ideals. In addition, the ranks of the “unfree” (be they African Americans, convicts, Chinese, new immigrants, women, or whoever next appeared as a most haplessly exploited labor force) too easily served as a scapegoat for the strains confronting free laborers. Early in the century, such a distorted sense of victimhood had notably distanced white workers from black slaves. ⁷² Whether the ideal of free labor proved an expansive or collapsing category would be repeatedly tested, regularly pitting contract rights associated with both an individualist ideology and property ownership interest against the right of association and value of solidarity embraced by organized labor. In 1935, W. E. B. Du Bois similarly posited an enduring conflict between “abolition—democracy based on freedom, intelligence and power for all men” and “[a system of] industry for private profit directed by an autocracy determined at any price to amass wealth and power.” ⁷³ It was a conflict Tocqueville and other early democratic idealists had not foreseen. Moreover, and perhaps this was the most telling point, in the U.S., unlike France, the group sense (or what French historian William H. Sewell, Jr., calls the “corporate idiom”) was never so robust as to effectively balance individual property rights in the affairs of state. ⁷⁴ Thus, however compelling—and perhaps even politically necessary—a component it was as part of a social movement in a nation bound by an eighteenth-century constitutional framework, the free-labor doctrine exposed a deep problem confronting the American working people: freedom was not enough.