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A Mysterious Power: Industrial Accidents and the Legal Construction of Employment Relations in Massachusetts, 1800-1850

Published online by Cambridge University Press:  28 October 2011

Christopher L. Tomlins
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Extract

On 16 June 1837, at a little after six o'clock in the morning, a train of cars carrying lumber and gravel and crowded with twenty or more Irish track laborers and other workmen left the Boston depot of the Boston & Worcester Railroad Corporation bound for Worcester. About four miles out, just after the train had passed the City Mills and was nearing the Brookline road, a wheel on one of the cars broke. The train was thrown from the tracks. Two men were killed and several others severely injured.

Among the injured was a man named Gilham Barnes, engaged by the Corporation about two weeks before to carry out maintenance work on several bridges between Boston and Worcester. On the previous day, Barnes, his brother Luther, and one of the men who worked with them had ridden the same train (an unscheduled track maintenance train known to the corporation as the “gravel” train) as far as the Arsenal bridge, which carried the railroad over the Watertown road in Brighton, to deliver materials and tools. On the morning of the sixteenth, Barnes sent the others by wagon via the Mill Dam toll road to begin work on the Arsenal bridge while he made arrangements with the conductor of the gravel train for additional materials to be carried to the Worcester bridge. Barnes intended, it would seem, to ride the gravel train as far as the Arsenal bridge where he would jump off and join his workmen. “We saw the train going out just after we paid [the] toll,” Luther Barnes later recounted. “Then near City Mills we saw shingles &c all about. I saw my brother running towards us. He waved his hat twice. And he held up his arm and I saw blood and flesh.”

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Articles
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Law and History Review , Volume 6 , Issue 2 , Fall 1988 , pp. 375 - 438
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Copyright © the American Society for Legal History, Inc. 1988

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References

Notes

1. Shattuck to Hale, in Barnes v. Boston & Worcester Railroad Corp., Charles Greely Loring Papers, unprocessed manuscript collection, Social Law Library, Boston (hereinafter cited as Loring Papers).

2. These and all subsequent details of the case are drawn from files of case notes and testimony referring to Barnes v. Boston & Worcester Railroad Corp. in Loring Papers.

3. Moore to Hale, in Loring Papers. For Shattuck's letter to Hale see the prologue to this paper.

4. Barnes v. Boston & Worcester Railroad Corp., Suffolk County Court of Common Pleas, October term 1837 (New Entry 216). (These records are currently in the care of the Judicial Archives Reclamation Project, Suffolk County Court House, Boston, hereinafter referred to as JARP.)

5. Supreme Judicial Court dockets, March term 1838 (Continuing Action 313) and March term 1839 (Continuing Action 172). In Office of the Clerk of Court, Supreme Judicial Court (Single Justice Session), Suffolk County Court House, Boston.

6. For a full listing see Comment, , “The Creation of a Common Law Rule: The Fellow-Servant Rule, 1837-1860,” University of Pennsylvania Law Review 132 (1984): 579–620Google Scholar.

7. Farwell v. Boston & Worcester Railroad Corp., Suffolk County Court of Common Pleas, October term 1839 (New Entry 150), JARP.

8. Levy, Leonard W., The Law of the Commonwealth and Chief Justice Shaw (Cambridge, 1957), 166Google Scholar. See also, Friedman, Lawrence M. and Ladinsky, Jack, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (1967): 50–82CrossRefGoogle Scholar.

9. See, for example, Horwitz, Morton J., The Transformation of American Law, 1780-1860 (Cambridge, 1977), 208–10Google Scholar. See also Comment, “Creation of a Common Law Rule,” 580-81. It would be less than fair to Horwitz if I did not add that although, as will become apparent, I disagree with his rendition of the doctrinal dynamics of the fellow-servant rule, as will also become apparent, I have benefitted enormously from his general discussion of the pivotal role of commercial and industrial elites in the development of antebellum Massachusetts's legal culture. I am grateful to Willy Forbath for helping me clarify my thinking on this matter.

10. Rabin, Robert L., “The Historical Development of the Fault Principle: A Reinterpretation,” Georgia Law Review 15 (1981): 925–61Google Scholar. See also Schwartz, Gary T., “Tort Law and the Economy in Nineteenth Century America: A Reinterpretation,” Yale Law Journal 90 (1981): 1717–75CrossRefGoogle Scholar; Pritchard, M. J., Scott v. Shepherd (1773) and the Emergence of the Tort of Negligence (London, 1976Google Scholar).

11. On subsequent doctrinal debates on the meaning and application of the fellowservant rule, see Comment, “Creation of a Common Law Rule,” 594-620. See also Friedman, Lawrence M., A History of American Law (New York, 1973), 422Google Scholar.

12. Gordon, Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 1122CrossRefGoogle Scholar. (Emphasis in original).

13. Carlyle, Thomas, “Signs of the Times,” in Carlyle: Selected Works, Reminiscences and Letters, ed. Symons, Julian (Cambridge, 1963), 22Google Scholar.

14. Marx, Leo, The Machine in the Garden: Technology and the Pastoral Ideal in America (New York, 1964), 170–80Google Scholar.

15. Carlyle, “Signs of the Times,” 22-23, 25.

16. Ibid., 35.

17. Quoted in White, George S., A Memoir of Samuel Slater (Philadelphia, 1836), 53–57Google Scholar.

18. For an interpretation of the manifestation of such sentiments in law, see Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth Century United States (Madison, 1956), 3–32Google Scholar.

19. Marx, Machine in the Garden, 181.

20. Appleby, Joyce, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York, 1984), 49–50Google Scholar.

21. McCoy, Drew, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill, 1980), 15, 62–67Google Scholar.

22. Kasson, John, Civilizing the Machine: Technology and Republican Values in America, 1776-1900 (New York, 1976), 3–51Google Scholar, especially 13; Marx, Machine in the Garden, 145-50.

23. McCoy, Elusive Republic, 111, 104-19. A particular object of concern for those sharing this perspective was Alexander Hamilton's 1791 blueprint for industrial growth, the Report on Manufactures. Hamilton's Report underscored how an industrialism animated by the political economy of Federalism would be a far different phenomenon from that implied in the Jeffersonian vision, seeming to many liberal Republicans “to describe a society ominously reminiscent of the English system.” Rather than a republican industrialism predicated on the diffusion of wealth and energy, the Report recommended policies to encourage the concentration of capital and its investment in large-scale manufacturing through the creation of subsidized corporate monopolies. To Hamilton's opponents, these “artificial” monopolies “would ruin private, ‘natural’ producers and foster dangerous, unrepublican disparities in wealth.” Indeed, many of them “came to fear nothing less than a conspiracy to corrupt American society and smash the republican experiment by imitating British forms, manners and institutions.” This same contest of world views was renewed ten years later when the revival of commercial tensions between America and Europe brought Congress “a deluge of petitions seeking public support of domestic manufactures.” Shrugging off bitter Federalist criticism, the Jeffersonians rejected the petitions, pointing the “excellent and extensive” achievements of the artisan trades and treating the virtual absence of larger-scale factory production of textiles and metal goods as a positive good. “We may felicitate ourselves that, by reason of the ease of gaining a subsistence and the high price of wages, our fellow-citizens born to happier destinies are not doomed to the wretchedness of a strict discipline in such manufactories.” See also McCoy, Elusive Republic, 148-65, 223-24.

24. See generally Appleby, Capitalism and a New Social Order, 79-105.

25. Ibid., 45, 3-23.

26. Ibid., 94.

27. See, in general, Berthoff, Rowland, An Unsettled People: Social Order and Disorder in American History (New York, 1971Google Scholar).

28. Kasson, Civilizing the Machine, 31-32.

29. Ibid., 64. See generally, Rothman, David J., The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston, 1971Google Scholar).

30. Thus Michael Ignatieff notes that Bentham conceived of the penitentiary “as a machine for the social production of guilt.” A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (London, 1978), 213Google Scholar.

31. Quoted in Ibid., 67.

32. Rothman, Discovery of the Asylum, 108; Ignatieff, Just Measure of Pain, 67.

33. See, for example, Pollard, Sidney, The Genesis of Modern Management: A Study of the Industrial Revolution in Great Britain (London, 1965Google Scholar). The same assumption animates Chandler's, Alfred D.The Visible Hand: The Managerial Revolution in American Business (Cambridge, 1977Google Scholar).

34. Ignatieff, Just Measure of Pain, 62.

35. Kasson, Civilizing the Machine, 64.

36. Wallace, Anthony F. C., Rockdale: The Growth of An American Village in the Early Industrial Revolution (New York, 1978), 263Google Scholar.

37. Ibid., 57-86. Indeed, according to Andrew Fraser, what one sees represented in the early business corporation is not at all the budding capitalist's exclusive focus on profits and production but a traditional elite's political concern for an institutional form to underpin the natural hierarchical order of propertied authority in the face of the ravages of Jeffersonian democracy. As much a political as an economic institution, the early corporation was “a little republic,” whose relationship with its employees—that of “benevolent but firm patriarch[y]”—reflected a conservative republican communitarian ideology. See Fraser, “The Corporation as Body Politic,” unpublished paper, 29-59.

38. Kasson, Civilizing the Machine, 69-86; Prude, Jonathan, The Coming of Industrial Order: Town and Factory Life in Rural Massachusetts (New York, 1983), 111–16Google Scholar; White, Memoir of Samuel Slater, 113-20.

39. As Keith Tribe puts it in his own critique of this representation, when we think of the Industrial Revolution we think “of factories and steam power, of fat capitalists and impoverished wage workers,” and above all “of machinery, discipline, and regulation.” See Tribe, , Genealogies of Capitalism (London, 1981), 111CrossRefGoogle Scholar.

40. Licht, Walter, Working for the Railroad: The Organization of Work in the Nineteenth Century (Princeton, 1983), 79Google Scholar. See generally, Thompson, E. P., “Time, Work-Discipline and Industrial Capitalism,” Past and Present 38 (1967): 56–97CrossRefGoogle Scholar.

41. Wallace, Rockdale, 181; Kasson, Civilizing the Machine, 78. See also Dublin, Thomas, Women at Work: The Transformation of Work and Community in Lowell, Massachusetts, 1826-1860 (New York, 1979), 70–71Google Scholar; Siracusa, Carl, A Mechanical People: Perceptions of the Industrial Order in Massachusetts, 1815-60 (Middletown, Conn., 1979), 115Google Scholar.

42. Dublin, Women at Work, 60, 73.

43. Tucker, Barbara M., Samuel Slater and the Origins of the American Textile Industry, 1790-1860 (Ithaca, 1984), 147–62Google Scholar; Prude, Coming of Industrial Order, 130.

44. Edwards, Richard C., Contested Terrain: The Transformation of the Workplace in the Twentieth Century (New York, 1979), 23–27Google Scholar.

45. Tribe, Genealogies of Capitalism, 115. Note the experience of the early-eighteenth-century English ironmaster, Ambrose Crowley. Crowley had attempted to run his works according to rules “defining duties, compensations, and penalties in the minutest detail.” When it came to the actual operation of his works, however, Sidney Pollard tells us that he was soon reduced to “a constant sense of despair about the efficiency of control.” Genesis of Modern Management, 55-59. Pollard concludes that the modern industrial proletariat that emerged in England in the first half of the nineteenth century experienced not so much disciplined regularity as “compulsion, force and fear” (207). For a sense of the chaos of industrialism in England, see Samuel, Raphael, “The Workshop of the World: Steam Power and Hand Technology in Mid-Victorian Britain,” History Workshop 3 (1977): 6–72CrossRefGoogle Scholar.

46. This point owes much to Michel Foucault's pointed observation that a disciplinary society does not imply a disciplined society; or, in other words, that disciplinary “simply refers to the deployment of certain techniques rather than to the achievement of desired effects as well.” See Cousins, Mark and Hussain, Athar, Michel Foucault (London, 1984), 188CrossRefGoogle Scholar. Rothman implies a similar conclusion in testifying to the inability of prisons and asylums, behind their respective institutional facades to achieve “order” in their populations. See Discovery of the Asylum, 237-64. See also Ignatieff, Just Measure of Pain, 207-15.

47. Ludtke, Alf, “The Historiography of Everyday Life: The Personal and the Political,” in Culture, Ideology and Politics: Essays for Eric Hobsbawm, ed. Samuel, Raphael and Jones, Gareth Stedman (London, 1982), 48Google Scholar. Walter Licht comments on railroad work: “Employment was erratic and uncertain, and the hours were long. But an even greater specter haunted nineteenth-century American railwaymen. Railroad work was dangerous. Accidents were not just common; they were an integral component of the work. If many men ultimately escaped accidental injuries and death, the fear and threat of such happenings were inescapable and hung over everyone working on the line.” In Working for the Railroad, 181.

48. Reports 100 (3 May 1827); 210 (4 July 1829); 1026 (2 April 1849); and 1247 (19 June 1851), all in Suffolk County Coroners, Reports of Inquests, Adlow Collection, Rare Book Room, Boston Public Library.

49. Quoted in Siracusa, Mechanical People, 157.

50. By “industrial accident” I mean an injury or illness occurring within the scope of employment and causally linked to employment.

51. Thomas Dublin makes passing reference to “the risk of personal injury” attending particular mill occupations, but provides no details. Women at Work, 65. In Rockdale, 149-50, Anthony Wallace argued that industrial accidents were a common occurrence, but that assertion is based on nothing more than a few incidents recorded by the artist John Rogers while he was a journeyman machinist in the early 1850s. Wallace has pursued the issue more systematically in St. Clair: A Nineteenth Century Coal Town's Experience with a Disaster-Prone Industry (New York, 1987), particularly 249–75Google Scholar. In this book, however, his evidence is drawn mostly from the 1860s and 1870s. Walter Licht's excellent study, Working for the Railroad, pays considerable attention to accidents but unfortunately he also has little concrete to offer on the earlier period.

52. Simeon Farmer, who “had his leg broke in two places by the return of an iron crow bar in turning over a stone” in June 1797; Richard Briggs “who had his leg broke blowing stones” in September 1800; and one Mr. Malseed who was fatally injured when he fell into a lock pit in August 1804. In Baldwin Papers, Box 2, “Reports”; and James F. Baldwin to Loammi Baldwin (13 August 1804), Baker Library, Harvard Business School, Box 1.

53. A laborer, Martin Nolan, had been injured while engaged in digging the drains from the new court house to the adjacent street. “The earth caved in upon him, and so injured him in the limbs as to confine him to his house fourteen weeks.” Bulfinch to —( ), in Adlow Collection.

54. Loammi Baldwin, Jr., to Commodore John Rogers, President of the Navy Board (2 November 1831), in Baldwin Papers, Box 21; Dexter to Baldwin (11 February 1833), in Baldwin Papers, Box 19.

55. In the absence of a reliable and comprehensive statistical record, any statement about the frequency of industrial accidents during the first half of the nineteenth century must be treated as at best conjectural. The hazards of relying on employer records are especially obvious, given that for much of the first three decades of the nineteenth century in Massachusetts the notion of employment remained sufficiently ephemeral to preclude the development of any widespread sense of an employer's responsibility for employees. Wage labor was the exception rather than the rule, and those who performed labor for others (outside the patriarchal household of family, domestic servants, and apprentices) did so more often as self-employed, independent contractors serving customers than as employees. This tended to disengage the employer from the manner in which work was performed and therefore from any mishap which occurred during its performance. Even where wage labor was common, as in the construction trades, employers took steps to limit their involvement in large-scale direct employment of labor. Rather than create its own semi-permanent work force, for example, the Middlesex Canal Corporation attempted to subcontract most of the unskilled construction work to local farmers or to gangs of laborers who formed themselves more or less spontaneously to bid for digging by the road. Skilled work, particularly masonry, was also usually subcontracted to master artisans who supplied their own journeymen and assistants. Delays in completing sections of the work were often attributed to the absence of a pool of labor on call, but the practice of subcontracting had the valuable benefit of spreading the economic risks associated with the enterprise beyond the investors in the corporation. These forms of work organization make accidents particularly difficult to trace because there is no reason why injuries to employees of subcontractors or to members of gangs of laborers would show up in the primary contractor's records. Indirect confirmation of this can be gleaned from a letter from George Whistler, chief engineer of the Western Railroad Corporation, to the corporation's board in answer to a claim made by Elias Whipple of Springfield for compensation for the death of his son in a construction accident. The son, Whistler indicated, “was unfortunately killed while on the road as a hired laborer of the contractor… it has never been the custom elsewhere to my knowledge, for Railroad corporations to make provision, in cases of accident among these laborers.” See Whistler to the President and Directors, Western Railroad Corporation (8 June 1841), WRR Case 1, Clerk's Files. In O'Day, Edward J., “Constructing the Western Railroad: The Irish Dimension,” Historical Journal of Massachusetts 11, no. 1 (January 1893): 20–21Google Scholar.

56. Suffolk County Coroners, Reports of Inquests 230-1595, in Adlow Collection.

57. Ibid., 180, 212.

58. Of twenty-five railroad workers whose deaths in accidents were recorded by the Suffolk County coroners between June 1845 and January 1859, eleven were brakemen. The next largest category was yardmen, with five (see Reports of Inquests in Adlow Collection). Over the same period on the Boston and Worcester alone, eight brakemen were killed and four injured. After one particularly nasty incident in January 1848, the directors appointed a committee to report on the cost of raising all bridges on the line. There is no indication, however, that any further action was taken. Boston and Worcester Railroad, Directors' Minutes, Vol. 6 (meeting of 4 January 1848), in Boston and Albany Railroad Collection, Baker Library, Harvard Business School.

59. Sabel, Charles F., Work and Politics: The Division of Labor in Industry (New York, 1982), 199CrossRefGoogle Scholar. See also Carson, W. G., The Other Price of Britain's Oil: Safety and Control in the North Sea (Oxford, 1982Google Scholar).

60. Dexter to Baldwin (14-28 January 1833), all in Baldwin Papers, Box 19.

61. Suffolk County Coroners, Reports of Inquests 753 (24 December 1845), in Adlow Collection.

62. Carson, Other Price of Britain's Oil, 84-138.

63. Dublin, Women at Work, 108-12, 132-38. (Emphasis supplied.)

64. Tucker, Samuel Slater, 214-49. And see generally Siracusa, Mechanical People, 160-61.

65. Salsbury, Stephen, The State, The Investor and the Railroad: The Boston and Albany, 1825-67 (Cambridge, 1967), 64–65CrossRefGoogle Scholar.

66. Ibid., 109.

67. Ibid., 112. So desperate was the board to demonstrate profitability that it committed itself to a first dividend that exceeded earnings by $5,000. As Salsbury comments “In effect, the [board] proposed to pay out as a dividend the money the stockholders paid in as capital” (130). Not to be outdone, the board two years later declared a half-year dividend of 3 percent, which it proposed to finance by raising a loan. Boston and Worcester Railroad, Directors' Minutes, Vol. 2 (meeting of 20 June 1837).

68. Salsbury, The State, the Investor and the Railroad, 114-15.

69. Examination of the directors' minutes indicates that in operations through 1850, the railroad's superintendents reported thirty-two incidents in which trains were derailed or involved in collisions with each other, and a further nineteen collisions with road traffic at crossings or with straying cattle. Over the same period some forty employees were reported killed or injured, along with forty-nine passengers and twenty-two pedestrians who had strayed onto the tracks. Boston and Worcester Railroad, Directors' Minutes, Vol. 1-7. (See also Suffolk County Coroners, Reports of Inquests.) It is likely that these figures understate the full total of death and injury as the superintendents did not always offer full details of the incidents they reported.

70. Directors' Minutes, Vol. 3 (meetings of 16 January 1839 and 10 April 1839).

71. Report of the Committee of Stockholders appointed “to examine and consider the report of the directors,” in Boston and Albany Railroad Collection, Case 6.

72. For a description of this growing consciousness of crisis in Massachusetts see Siracusa, Mechanical People, 155-62. See also generally Gordon, David M. et al. , Segmented Work, Divided Workers: The Historical Transformation of Labor in the United States (New York, 1982), 54–78Google Scholar.

73. See, for example, Wallace, Rockdale, 326-37; Tucker, Samuel Slater, 223-29). As Licht shows, this was a particular strategy of railroad managers faced with the accumulation of intractable operating problems. Working for the Railroad, 80-89.

74. Thus when, early in 1842, the Committee on Rail-roads and Canals of the Massachusetts General Court mounted an investigation into “the causes of the frequent accidents upon the Western rail-road” it determined that the most notorious accident— a head-on collision on 5 October 1841 at Westfield—had been caused by the failure of one conductor to keep to his timetable. However, in investigating a second major accident that had occurred in early February 1842 at Richmond, the committee professed itself unable to explain why an engineer (killed in the accident) had run his locomotive through a damaged section of track at normal speed (causing it to derail) without pausing to consider the impact on train crews of injunctions from the corporation to stick rigidly to the timetable on pain of dismissal. See Commonwealth of Massachusetts, Senate Document 55 (February 1842), 5-8.

75. See above, note 50 and accompanying text.

76. As Charles Sobel has pointed out, “rules are supposed to be constructed so carefully that following them blindly produces a perfect product every time. But… in factories as elsewhere, reality is so complex and rapidly changing that no plan can be comprehensive enough to be a completely reliable guide to action.” Work and Politics, 104. Similarly, Craig Littler states that “simple models of an organizational structure which assume unilateral rule-determination and unilateral rule-enforcement are extremely simplistic.” Littler stresses how rule evasion can quite easily become acceptable behavior to management and how this “collaborative violation” becomes “stabilized as a permanent aspect of the work organization.” Littler, Craig R., The Development of the Labor Process in Capitalist Societies (London, 1982), 40–41Google Scholar. See also Burawoy, Michael, Manufacturing Consent: Changes in the Labor Process Under Monopoly Capitalism (Chicago, 1979), 46–94Google Scholar.

77. Licht, Working for the Railroad, 89-93.

78. Kasson, Civilizing the Machine, 86-97.

79. Dublin, Women at Work, 112. Their efforts bore fruit in 1845 with the appointment of an investigative committee by the state legislature, before which textile workers presented compelling evidence of the “pain, disease, and privation” attending mill work and of the necessity of reducing hours. The committee, however, declined to recommend legislation and invited the operatives to make their representations to their employers who were in the best position to judge what remedies to institute. See Ware, Caroline, The Early New England Cotton Manufacture: A Study in Industrial Beginnings (Boston, 1931), 251Google Scholar; Dublin, Women at Work, 113-15.

80. Carlyle, “Signs of the Times,” 41.

81. These and all subsequent details of the case taken from case notes of Barnes v. Boston & Worcester Railroad Corporation in Loring Papers.

82. “He was in the habit of taking very full notes at the trial of his cases, and of writing out his arguments—generally by dictation—almost at length.” Parons, Theophilus, Memoir of Charles Greely Loring, Prepared Agreeably to a Resolution of the Massachusetts Historical Society (Cambridge, 1870), 9Google Scholar.

83. Emphasis in original.

84. Rex v. Inhabitants of Christchurch (1760), Burrow's Settlement Cases 494; Rex v. Inhabitants of Wintersett (1783) Clad. 298. See also Dominus Rex v. Inhabitantes de Hales Owen (1717) 1 Strange 100, concerning a master's obligation to his apprentice. Dalton's, Countrey Justice (London, 1742) states at page 141Google Scholar, “If a servant, retained for a year, happen within the time of his service to fall sick, or to be hurt or lamed, or otherwise to become non potens in corpore, by the Act of God, or in doing his master's business; yet the master must not, therefore, put such servant away, nor abate any part of his wages for such time.”

85. Servants or employees crippled or injured in accidents occurring in the course of their employment were “casual poor,” the responsibility of the parish in which the accident occurred (on the principle that responsibility under the poor laws lay with the parish where the pauper “really became poor and impotent by being disabled there.” Lamb v. Bunce (1815) 4M. & S. 276. See also Simmons v. Wilmott (1800) 3 Esp. 91; Rex v. Kynaston (1800) 1 East 117. While disputes over the relief of injured servants were not an uncommon occurrence in English courts, therefore, they were almost invariably disputes among parishes over attempts to “export” injured paupers or actions brought by surgeons and apothecaries against parishes to recover attendance fees. See, for example, Rex v. Inhabitants of St. James in Bury St. Edmunds (1808) 10 East 26; Wing v. Mill (1817) 1 B. & Ald. 104; Rex v. Inhabitants of St. Lawrence, Ludlow (1821) 4 B. & Ald. 660; Tomlinson v. Bentall and Another (1826) 5 B. & C. 738. No action appears to have been brought by a servant against a master for medical expenses and relief prior to Priestley v. Fowler (1837) 3 M. & W. 1. See, however, Sellen v. Norman (1829) 4 Car. & P. 80; Cooper v. Phillips (1831) 4 Car. & P. 580; Regina v. William Smith (1837) 8 Car. & P. 151. For an excellent summary of the law in England prior to Priestley v. Fowler, see Napier, Brian W., “The Contract of Service: The Concept and its Application” (Ph.D. diss., University of Cambridge, 1975), 129–35Google Scholar.

86. 2 Esp. 739, 4 Dougl. 284.

87. 1 Esp. 270.

88. 3 Bos. & Pul. 247. It is worth noting the comments of Alvanley's brother judges. Justice Heath considered it was to the advantage of servants that the legal claim for assistance should be against the parish rather than against their masters, “for the situation of many masters who are obliged to keep servants, is not such as to enable them to afford sufficient assistance in cases of serious illness.” Similarly, Justice Rooke concluded that if the general principle contended for the plaintiff were to be adopted as a rule of law, “many persons who are obliged for the purpose of their trade, to keep a number of servants, would be unable to fulfill the duty imposed upon them by the law.”

89. Dane, Nathan, A General Abridgement and Digest of American Law, 9 vols. (Boston, 1823), 2:319Google Scholar.

90. 14 Mass. 448.

91. Littleton v. Tuttleis reported at 4 Mass. 128. See also Inhabitants of Winchendon v. Inhabitants of Hatfield (1808) 4 Mass. 122; Inhabitants of Andover v. Inhabitants of Canton (1816) 13 Mass. 546; and Inhabitants of Stockbridge v. Inhabitants of West Stockbridge (1815) 12 Mass. 399 and in review (1817) 15 Mass. 256.

92. Although it is not directly on the point, the following observation drawn from Dane's Abridgement sheds light on the basis of the distinction between a master's responsibilities to a slave or juvenile servant and his responsibilities toward a hired laborer. “If a slave or a servant, in the place of a child, be beaten or injured by a third person, and sickness, &c. follows, the master recovers for the whole loss, as he must pay the expense, and lose the servant's time; but not where his hired servant has been beaten, for then he bears the loss, and is not entitled to wages during the time he is disabled by the battery, and he finally pays the expense, and such expense will be part of the damages he will recover.” 1:315.

93. 19 Mass. 451.

94. According to Dane, “The master of an apprentice is bound to pay for medical attendance on the apprentice, from the very nature of the relation between master and apprentice, and the father of the apprentice is only bound, when the services have been rendered at his request.” Dane emphasized the contrast with nonindentured labor. “As to hired servants, the employer is not bound to pay for medical attendance.” Abridgement, 9:35-36.

The provisions of the laws of settlement applying to the maintenance of indigent apprentices reinforce the conclusion that the legal responsibilities of the master to sick or injured apprentices were derived from a specific responsibility levied on masters to act in loco parentis, rather than from any general residual rights of servants. Unlike slaves, whose legal status denied them the right to a settlement of their own, apprentices did not acquire a derivative settlement through their masters but instead had their own settlement through their parents. This meant that where the maintenance of an apprentice was thrown into doubts by the pauperization of his master, the indenture was annulled and responsibility for care reverted to the apprentice's parents and thus ultimately to the community where they had their settlement. Prior to 1794, an apprentice deprived of maintenance by the death of his master could become the responsibility of the master's estate, to be maintained by the estate's executor until such time as his indenture was reassigned or the parties to the indenture agreed that it should be annulled. After 1794, however, the indenture was held to be annulled automatically by the master's death and the apprentice was returned to his parents or to the overseers of the poor to be bound out afresh. See The American Justice (an abridged edition of Burn's, Justice of the Peace) (Dover, N.H., 1792), 34–36Google Scholar; Mass. Stat.s (1793) c. 59, (1794) c. 64.

95. In his classic Government and Labor in Early America (Boston, 1981Google Scholar), Richard B. Morris notes that in the case of indentured servants, as with slaves and apprentices, it was colonial policy to hold masters responsible for their welfare (18). Employers had no liability for unbound labor, however, the burden falling by default upon the town (in the case of Massachusetts) in which the accident or sickness occurred. Where the injured party was a stranger, the town would then attempt to determine where the injured person's settlement was and seek reimbursement. This was often a hopeless task, as is evidenced in the following petition of the Selectmen of the Town of Palmer (24 January 1767), Massachusetts Archives Collection, vol. 303, 128:

To His Excellency Francis Bernard Esq., Captain General and Governor in Chief over His Majesties Province of the Massachusetts Bay in New England &C, and to the Honorable His Majesties Counsell. The petition of William Scott, Seth Shaw and Robert Roggers, Selectmen and overseers of the poor of the District of Palmer Humbly sheweth. viz

That whereas one John Ryan, a Transient person not being an inhabitant of our District, nor having any regular place of abode in America that we know of: as he was passing threw our District was Hired to work one Day to assist in pulling down a bridge and to erect another: the bridge fell with him and others on it; and a large quantity of Heavy Timber fell on him: by which he was exceedingly bruised: and also Broke his arm: shoulder: collar bone and Ribs: by which means it Required our Emediate assistance to take Care of Him in his Destressed Condition which your Petitioners have done: and by Extraordinary Care and Expence he is Considerably Recovered and Likely to have the use of his Limbs to a Considerable degree; but is No way able to pay the Cost or ever likely to be able. Nor is there any other Town in America as we know of by Law liable to Reimburse the Cost of his Cure to us: and have no other Remedy but by applying to your Excelency and Honor that the same may be made a province charge.

96. There was, however, one master-servant relation that did have this character and that, nevertheless, did not conform to the rule of self-reliance. Seamen who were injured in the service of their ship or who fell sick during its voyage were held entitled in maritime law to be cured at the ship's expense and to suffer no diminution of wages while incapacitated. Noting in Natterstrom v. The Hazard (1809) 17 Fed. Cas. 1243-50 that the entitlement was “occasionally questioned by ship owners and masters,” the Federal District Court for Massachusetts went to some pains to investigate the matter fully. It concluded, that the ancient maritime codes upon which American maritime law was based—the laws of Oleron, of Wisbuy, and of the Hanse Towns—“wisely and humanely calculated to sooth the sorrows of the sick or disabled mariner” by providing that he be cared for in the event of any calamity, and further that his disablement “should not diminish his stipulated wages, during the existence of his disability, or his necessary absence from the service of the ship from that cause.” The court noted that this was exceptional. “The application of the Roman law de locatione et conductione, to which Pothier expressly refers, for a construction of the contract of hiring of labour, in general, and for the hire of seamen, in particular, would exclude a claim for compensation during the disability of the servant or labourer.” But just as generous masters would not insist on a strict enforcement of their rights, but would continue to pay the wages of a sick servant notwithstanding his inability to perform his stipulated services, “so the law marine in relation to mariners converts into an obligation what, in other instances of hire, is the result of benevolence.” It did so, according to the court, “for the encouragement of seamen, and as a compensation for the risk which they run of an entire loss of wages, from inevitable accidents occurring to the ship, or from a destruction of the voyage.”

There were, however, relatively stringent limits to this obligation. First, the patry obliged to meet the expense of maintaining sick or disabled crew members was not the master or owner of the ship but the ship itself (see Dane, Abridgement, 9:202). To the extent that the ship and its cargo also represented the total available assets from which wages could be paid (see The Saratoga. —Keating, claimant. Circuit Court of the United States—Massachusetts [October 1814], reported in American Law Journal, 6 [1815]: 12–20Google Scholar), the expense of maintaining sick crew members was an operating expense shared by all rather than one borne exclusively by the owner. The analogy to the parish or town's obligation to maintain sick or injured servants is imperfect, but it would be incorrect to claim that in the case of seamen the obligation to maintain was exclusively a charge on their masters. Second, the obligation extended only to sickness or disabilities “not produced by [the seaman's] own criminality or fault.” (In Nathan Dane's version of this exclusion, the ship was not responsible for injuries caused by the “vicious or unjustifiable conduct” of a seaman. Abridgement, 2:480). In such circumstances, the seaman “is not entitled to his wages during the time he does no duty; and subsistence, during the same time, may be charged to him.” Finally, in the event of the death of a seaman in the service of the ship, no obligation was incurred to pay any form of compensation beyond what was owed to him in wages at the time of his death. Among all categories of hired labor, therefore, seamen alone appear as an exception to the common-law rule of self-reliance alleviated by an entitlement to relief by the community when rendered incapable; and even seamen were at best a qualified exception, one grounded in considerations of “policy.”

97. Pothier, Robert Joseph, Treatise on the Contact of Letting and Hiring (Contract de Louage), trans. Mulligan, G. A. (Durban, 1953), 66Google Scholar.

98. Morton Horwitz has suggested that prior to the era of employer liability litigation most sick or injured workers were probably relieved by their employers from motives of benevolence or charity. Transformation of American Law, 208.

99. Suffolk County Court of Common Pleas, July term 1803; Supreme Judicial Court, November term 1806 (on appeal), Continuing Action 280; November term 1807 (on review) New Entry 307. See also Ratchford v. Niles, Supreme Judicial Court, November term 1807, Continuing Action 58.

100. “Sickness of Domestics,” The Boston Medical and Surgical Journal 2, No. 23 (21 July 1829), 353–54CrossRefGoogle Scholar.

101. Massachusetts General Hospital, Annual Report to the Board of Trustees 1836–39.

102. Some evidence of corporate benevolence earlier than this can be found in Loammi Baldwin's Middlesex Canal Corporation records that show two of the workers reported injured during construction of the canal had payments voted to them by the corporation's board of directors. In the case of Simeon Farmer, the Board voted that Baldwin pay for his board “one month or more in consideration of his suffering occasioned in the work of the canal.” Later correspondence reveals that Fanner was off work for fourteen weeks and confronted by bills for medical attendance and board totalling over fifty dollars. Again in September 1800, the Committee on Operations voted $35 toward the expenses of Richard Briggs “who had his leg broke blowing stones.” That this was by no means the rule, however, is indicated by the case of Martin Nolan, the laborer injured during construction of the Suffolk County Court House. Despite strong support from the architect in charge, Nolan went uncompensated. See above, notes 52–53 and accompanying text.

103. Ware, Early New England Cotton Manufacture, 61; Wallace, Rockdale, 296–397.

104. Scranton, Phillip, Proprietary Capitalism: The Textile Manufacture at Philadelphia, 1800–1885 (New York, 1983), 30–31Google Scholar.

105. Reports of employee injuries and deaths in the minutes of the board of the directors of the Boston and Worcester Railroad reveal that a tendency in the late 1830s to offer employees or their families fairly substantial cash payments in the event of the injury or death of the employee while in the railroad's service had virtually disappeared by the mid–1840s. See, for example, Directors' Minutes, 3 (meeting of 9 October 1838), detailing payment of $500 to the widow of Hiram Bridges, engineer, killed in a collision, and compare with Directors' Minutes 5 (meeting of 11 February 1845), instructing the superintendent to provide relief to John Smith, machinist, severely injured in a machine shop accident, “not exceeding thirty dollars”; and Directors' Minutes 6 (meeting of 20 April 1847), instructing that a subcommittee created to inquire into the circumstances of an accident to John Mitchell, brakeman, in which Mitchell lost his leg, be empowered to pay Mitchell's hospital expenses and also the cost of a wooden leg “if they judge [the latter] expedient.”

106. As the owner and operator of the gravel cars, the corporation was to be held to the responsibilities of a common carrier of passengers. It was therefore bound to exercise diligence such as would ensure safe carriage to those riding legitimately, save only from extraordinary accidents. The law would infer from the circumstance of breaking down without apparent cause a prima facie proof of defect or negligence for which the defendant was liable. Thus the burden was on the defendant to show that there was no defect. But this it could not do, for cracked wheels were in use on the cars and had caused the accident. The defendant had admitted by its own action in removing cracked wheels from the passenger train that it did not consider them safe— “except,” Choate added sarcastically, “for Irish labourers”—and it had failed to show any sort of usage of cracked wheels on other roads that might justify it in seeking to place the risk of riding on a gravel train on the shoulders of the plaintiff.

107. “Suppose the contract general to carry plaintiff and his materials—which is the only reasonable supposition—it is manifest that plaintiff must in such case adopt the usual mode, or some [other] one pointed out by defendants.” (Emphasis in original.) If, knowing the rule, he either accidentally by loss of time or for preference chose to exercise the privilege of free transportation extended to him by the corporation by taking another mode of conveyance, it was at his own risk.

108. Emphasis in original.

109. Emphasis in original.

110. Emphasis in original.

111. Emphasis supplied.

112. To illustrate his point, Loring offered a homely analogy:

Suppose a private individual not acting as owner of a line of coaches or baggage wagons undertakes to remove a family and its furniture from one place to another. He is held to no greater care prudence and skill in his vehicle horses and driver than men ordinarily receive. And if this carriage break or be overturned and loss of property or life ensue—he is not accountable unless owing to want of ordinary care and diligence. Whereas if he were acting as Common Carrier or stage coach proprietor he would be liable in one case at all events, and in the other for any want of utmost care and prudence. (Emphasis in original.)

Moreover, “this case would be the same, if a person were thus carrying materials and men to do work upon his home or farm.” In either case “reasonable diligence is all that could be required.”

113. Emphasis in original.

114. In her outstanding biography of Rufus Choate, Jean V. Matthews has noted that by the 1840s “although the Whig industrialists did not entirely abandon their original idea of government as a positive force in the economy, they did increasingly resist attempts by government to regulate as well as aid industry. Their property might be social, both in the benefits it dispensed and the fostering it deserved, but its management they regarded as a purely private matter.” Matthews, Jean V., Rufus Choate, The Law and Civic Virtue (Philadelphia, 1980), 74Google Scholar.

115. 34 Virginia (7 Leigh) 383.

116. The possibility that plaintiffs would have available to them this means of introducing jury deliberations into the determination of the cause of occupational death is of particular importance in the American context, given the rapid withering away after the Revolution of any recognition of a capacity in coroners' juries to levy fines or “deodands” on the objects (and thus on the owners of the objects) that had “moved to the death” of a victim. On deodands, see Smith, Harry, “From Deodand to Dependency,” American Journal of Legal History 2 (1967): 389–403CrossRefGoogle Scholar. On the role of coroners' juries in the determination of cause of occupational death in England, see Cawthon, Elizabeth, “Thomas Wakley and the Medical Coronership—Occupational Death and the Judicial Process,” Medical History 30 (1986): 191–202CrossRefGoogle ScholarPubMed. According to the Corpus Juris Secundum “the doctrine (of deodand) was so repugnant to the American concept of justice that it was not included as a part of the common law of this country.” C. J. S. 26A, 185. See also Parker-Harris Company v. Tate (1916) 135 Tennessee 510.

117. Farwell v. Boston & Worcester Railroad, Supreme Judicial Court (Suffolk County) November term 1840, Continuing Action 215.

118. 3 M. & W. 1. This case was originally heard at the Lincolnshire Assizes in July 1836.

119. 1 McMullen 385. This case was originally heard before a jury at Charleston in 1838.

120. Commentary on the argument of counsel in Farwell's case is based on a reconstruction derived from a combination of three sources: Charles Greely Loring's case notes, in Loring Papers; the entries concerning Farwell's case in the minute book of the Chief Justice of the Supreme Judicial Court, Lemuel Shaw (29:244–49), Social Law Library, Boston; and the entries concerning the case in the minute book of Justice William Hubbard (1:184–95), Social Law Library, Boston. Unless otherwise indicated, Loring's case notes are the prime source.

121. Horwitz, Transformation of American Law, 210.

122. 3 M & W. 5–6.

123. 1 McMullan 398–99.

124. Ibid., 400.

125. Shaw was not impressed with Loring's attempt to avoid the action on the case. “It is questionable whether this action is founded in tort or contract,” he recorded in his minutes. “It falters between both.” As we have already seen, Loring's argument in Barnes was contract-based. Shaw's minute book.

126. “We do not go upon the principle that the defendants are liable in this case upon the rule regulating their liability to passengers carried for hire. In that case they are liable for the want of the utmost care and prudence of which human foresight is capable. But the servants in their employment do not come within the reason of that rule … Nor do we rest our claim upon the same principle which lies at foundation of the liability of principals for the acts of their servants.”

127. Chief Justice Shaw's minute book reveals the judge noting to himself at this point, “It may be that the remedy in tort is mistaken, causing him to amend the form of action.” Similarly, Justice Hubbard's minute book notes that no contract was alleged in the plaintiffs declaration but trespass on the case was the plea.

128. Emphases in the original.

129. The switchman “contracts alone with the defendants and is directly accountable to them.” It was the corporation “from whom he receives his compensation [and] who alone can control or dismiss him.”

130. “I have looked through all [the] digests and books. [I] have examined [the] civil codes,” stated George Morey. Nowhere was there any hint of a rule remotely similar to that for which the plaintiff was contending.

131. According to Justice Hubbard's minutes, Morey likened the relationship between the engineer and the switchman to that pertaining between different parts of the body. “Could the eye complain of the hand and the hand of the foot?” Defense counsel also used the examples of a blacksmith's shop, a stage play, and farmers making hay as illustrations of their point.

132. Ibid.

133. Ibid. Shaw records counsel's remarks slightly differently. “[Respondeat superior] prevails in the civil or cases at the common law yet there has been no case in either code when the legal principle has been so applied. The cases must have happened, time without number, and no such [action] was brought, till lately, and never sustained. It would be a new era in legal history if maintained.”

134. Originally, Morey told the court, respondeat superior had been expressly limited to the protection of travellers on the highway and their property from injury. Succeeding cases had, for sound reasons of public policy, subsequently extended the master's obligation to encompass all third persons. It had, however, never been held to extend to indemnify other servants. In Shaw's minute book.

135. Ibid.

136. Mass. Stat.s (1840) c. 80:

If the life of any person, being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any rail-road, steam-boat, stage coach, or of common carrier of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, in this Commonwealth, such proprietor or proprietors, and common carriers, shall be liable to a fine not exceeding five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs.

137. When it came to his rebuttal Loring hedged his bets but, according to Shaw's minutes, he did so rather unconvincingly. “[We] do not place the case on the ground of [the] liability of [the] master for the negligence of servants, but do not decline it, and if the court think it applicable, it [could] be applied.”

138. In Hubbard's minute book.

139. Emphasis in original. Hubbard's minutes show that Fletcher emphasized that Farwell's wages as an engineer were higher than those he had received as a machinist, and that there was also a differential between the wages he had been paid as the engineer of the merchandise train and those he received for driving the passenger train.

140. Shaw's minute book.

141. Emphasis in original.

142. Justice Hubbard noted in his minutes that Loring “thinks servants very degraded in England—and so poor [that they] cannot try their cases.”

143. 45 Mass. 49, at 56.

144. Ibid., 57.

145. Ibid.

146. Comment, “Creation of a Common Law Rule,” 590–94.

147. 45 Mass. 49, at 57.

148. See, generally, Boston and Worcester Railroad, Directors' Minutes, Vols. 2–4 (1837–42).

149. Western Railroad, Directors' Records, 2 (1836–41), and Clerk's Files, Case 1, all in Boston and Albany Collection, Baker Library, Harvard Business School; Salsbury, The State, the Investor and the Railroad, 182–85.

150. Report of the Committee on Rail-roads and Canals (Senate Document 55, 1842), 6–9; Salsbury, The State, the Investor and the Railroad, 189.

151. Ibid.

152. Senate Document 55 (1842), 8.

153. 45 Mass. 49, at 59.

154. Ibid., 58.

155. Ibid., 59.

156. That such self- and other-discipline were two sides of the same coin in Shaw's decision is confirmed by his reaction to Loring's attempt to distinguish Farwell's claim on the grounds that he and the switchman were employed in different departments. If employees were to be responsible for policing each other, Loring argued, that responsibility could extend only so far as their emjoyment of the means—notably the requisite knowledge—to do so. Shaw, however, refused to entertain the point. First, he challenged Loring on whether the different departments could in fact be distinguished from each other. “When the object to be a ccomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish, what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case.” But in any case, Shaw continued, Loring's distinction assumed a principle of employer responsibility which the court did not accept. “The exemption of the master … from liability for the negligence of a fellow servant, does not depend exclusively upon the consideration, that the servant has better means to provide for his own safety, but upon other grounds.” Those other grounds were the employee's contractual assumption of the risks of his employment. The master was exempt from liability “because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself.” 45 Mass. 49, at 60–61. (Emphasis in original.)

157. Carlyle, “Signs of the Times,” 42.

158. 57 Mass. 270, and 60 Mass. 75. These were the first cases to come before the Supreme Judicial Court on the question of an employer's liability for occupational injuries after Farwell's suit.

159. 63 Mass. 112, at 115. The plaintiff in this case was an apprentice in the defendant corporation's machine shop but was injured while acting temporarily as a fireman at no advance in his wages. Although the risk premium had been an important element in Shaw's justification of the assumption of risk doctrine, the court in King studiously ignored the inconsistency.

160. 64 Mass. 228, at 231. The circumstances of Gillshannon's case were, of course, identical to those in the suit brought by Gilham Barnes.

161. 70 Mass. 99.

162. Comment, “The Creation of a Common Law Rule,” 579.

163. So far as the potential of respondeat superior is concerned, there is no evidence that the principle had ever been applied or even thought of as a rule of sufficient generality as to encompass the imputation of negligence to the employer in cases of injury occurring within an employment relationship. (Respondeat superior, as we have seen, was not invoked in Barnes, nor was it in Priestley v. Fowler). Indeed, earlynineteenth-century Massachusetts lawyers with an interest in the origins of this “ancient customary principle” might reasonably have been led to the conclusion that respondeat superior specifically excused the master from liability for injuries done by one servant to another. In 1808, the American Law Journal, published in Boston and Philadelphia, carried a translation of those elements of Justinian's Pandects that dealt with the responsibilities of masters of ships and of inn- and stablekeepers. “The master must answer for the acts of all his mariners, whether slaves or freemen” indicted the Journal, translating from the eighteenth book of Ulpian; “and it is very proper he should answer, as he himself appoints them.” But “he does not answer further than for damage done on board of his vessel; and he is not to answer for any thing done out of the vessel although by mariners.” And crucially, “if the mariners occasion damage to each other, no action lies against the master.” American Law Journal 1, no. 4 (1808): 496Google Scholar.

The argument that in industrial accident cases judges had to confront respondeat superior as relevant doctrine to be distinguished—or that in Farwell, as Horwitz would have it, the court was spared the necessity of so doing only because of Loring's ineptitude—grows out of the assumption that these cases were part of a larger trend in legal development in which a judiciary sympathetic toward entrepreneurial capitalism reacted to the increasing incidence of tort claims accompanying the industrialization of the northeastern economy by radically diluting preindustrial principles of strict liability through the introduction of liability-limiting criteria such as the fault principle. As I indicated in the introduction to this paper, however, recent research has suggested that injurious behavior in the preindustrial era was governed not by principles of strict liability but by an assumption of no-liability outside carefully demarcated areas. Seen from this perspective, respondeat superior appears less as the doctrinal expression in master-servant relations of wide-ranging, strict-liability assumptions than as one of a limited number of carefully policed enclaves existing in a predominantly no-liability world. Into this enclave the courts admitted injuries suffered by strangers at the hands of servants if the consequence of acts expressly or implicitly commanded by the master and occurring within the usual course of his business, but not injuries judged to be the consequence of a servant's “wilful” acts. (Given that the courts' definition of wilful action could extend to any act the performance of which was not involuntary or uncoerced, the realm of potentially uncompensated injuries was left wide indeed). A master was also held liable where an injury appeared to be the result of negligence or want of skill on the part of a servant, “because it was a neglect and fault in the master to appoint a careless and negligent person to do his business.” As Nathan Dane indicted, however, there was no guarantee that the principle would extend liability to masters if they could show that the servant they had appointed had otherwise exhibited a “good and faithful character,” for it had never been settled “how far one negligent act, as the one complained of, is conclusive evidence of a negligent character in the servant.” See Dane, , Abridgement, vol. 2, 495Google Scholar, and generally 315–16, 494–95. Even in third-party relations, therefore, respondeat superior did not render the master automatically liable for any injury resulting from his servant's negligence. Rather, the liability of the master was on account of his own fault in appointing an insufficient servant, and might be avoided by demonstrating due care in the choice of the servant.

164. 57 Mass. 270, at 274.

165. 60 Mass. 75, at 77.

166. 70 Mass. 99, at 101. She, of course, remained accountable to the superintendent, or any other agent to whom the employer had delegated supervisory authority, on the basis of her contract with the employer.

167. Ibid., 101.

168. Gordon, “Critical Legal Histories,” 1122.

169. As Horwitz puts it, in this contractarian world “the only measure of justice was the parties' own agreement.” Transformation of American Law, 209.

170. Albro v. Jacquith, 70 Mass. 99, at 101. On the invisibility of power within the contract of employment, see Fox, Alan, Beyond Contract: Work, Power and Trust Relations (London, 1974), 182–84Google Scholar.

171. By disciplinary power I do not mean simply the power to command obedience. Rather, I mean the “mechanism of power which permits time and labour … to be extracted from bodies,” which Michel Foucault identified some years ago as the singular invention of the seventeenth and eighteenth centuries. According to Foucault, disciplinary power is power in detail. It “implies an uninterrupted, constant coercion, supervising the processes of the activity rather than the result.” It is administered “according to a codification that partitions as closely as possible time, space, movement.” Differing from “service,” which was “a constant, total, massive, non-analytical, unlimited relation of domination, established in the form of the individual will of the master,” disciplinary power became possible “when an art of the human body was born, which was directed not only at the growth of its skills, nor at the intensification of its subjection, but at the formation of a relation that in the mechanism itself makes it more obedient as it becomes more useful.” See Foucault, , “Two Lectures,” in Power/Knowledge: Selected Interviews and Writings, 1972–77, ed. Gordon, Colin (New York, 1980), 104Google Scholar; Discipline and Punish: The Birth of the Prison (New York, 1979), 137–38Google Scholar.

172. See generally Renner, Karl, The Institutions of Private Law and their Social Functions, ed. Kahn-Freund, Otto (London, 1949Google Scholar).

173. Fox, Beyond Contract, 188–89; Kinsey, Richard, “Despotism and Legality,” in Capitalism and the Rule of Law: From Deviancy Theory to Marxism, ed. Fine, Bob et al. , (London, 1979), 46–64Google Scholar.

174. Foucault, Power/Knowledge, 92–108. See also Cousins and Hussain, Michel Foucault, 225–51. For an example of the state-centered analysis of power that Foucault wished to criticize, see Poggi, Gianfranco, The Development of the Modern State: A Sociological Introduction (London, 1978), 92–107Google Scholar.

175. Foucault, Power/Knowledge, 105.

176. Ibid., 105–7.

177. Gordon, Robert W., “New Developments in Legal Theory,” in The Politics of Law: A Progressive Critique, ed. Kairys, David (New York, 1982), 286–92Google Scholar. And see Hirst, Paul, On Law and Ideology (London, 1979), 113, 146–50CrossRefGoogle Scholar; Tombs, Jacqueline, “Law and Slavery in North America: The Development of a Legal Category” (Ph.D. diss., University of Edinburgh, 1982), 54–6Google Scholar.