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Reviews / Comptes Rendus

Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (Cambridge: Cambridge University Press, 2001)

ROBERT J. STEINFELD's earlier book, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill: University of North Carolina Press, 1991) compared British and American labour law up to the late 19th century. Steinfeld argued that free labour (where employers could not compel performance or imprison workers for leaving their labour contracts) only achieved preeminence in the 1800s. In his new book, Coercion, Contract, and Free Labor, Steinfeld returns to the comparative history of the enforcement of wage labour contracts in Britain and the United States of America in the 19th century. Instead of studying the emergence of free labour, Steinfeld turns to the persistence of unfree labour. He concludes that free and unfree labour are but part of a continuum. Free labour is not inherent to the free market; on the contrary, employers and lawmakers have been quite willing, even eager, to perpetuate unfreedom in labour contacts. The development and definition of free labour was contingent on regional and national politics, ideas, and economies.	1
It is hardly surprising to historians to learn that free and unfree labour are not absolutes, or that the development of labour law is contingent. Nonetheless, Steinfeld does offer useful insight into labour law history and contemporary rhetoric. He draws attention to the conflicts between legislatures and courts in the development of labour law regimes on both sides of the Anglo-Atlantic. Steinfeld shows more concern for master and servant law, and takes his story later for both sides of the Atlantic than he did in the earlier book. He also shows that contemporary economic and legal thought that assumes a congruence between free labour and free markets is misguided both in theory and in historical experience.	2
The volume opens with a theoretical introduction, laying out the core propositions that free and unfree labour exist on a continuum, and the move from one to the other is not necessarily tied to the rise of the market economy. The essential difference between free and unfree labour, as the traditional narrative has it, is that unfree labour is labour that can be compelled with the force of law. Thus, where workers can be imprisoned for not completing a contract or compelled by court order to complete a contract they are unfree. Here and throughout the book, Steinfeld questions this definition. At what point do workers have a choice to leave employment? Posed first as a question of definition here, Steinfeld returns to the question frequently to critique the ways in which judges, legislators, and lawyers conceptualized free choice.	3
The substantive part of the book opens with a brief discussion of the law of contract labour from abroad in the US after 1830. He argues that contract labour in the mid- to late-19th century US was free labour, despite the long terms and the ability of employers to sell outstanding contracts to other employers. The "freedom" here was the absence of non-pecuniary remedies for breach of contract. Employers could not ask the courts to compel performance of a contract or to imprison an employee for breach.	4
The largest portion of the book (more than two thirds) is dedicated to a discussion of master and servant law in Britain in the mid-19th century. According to Steinfeld, in the standard narrative of labour law Britain should be the paradigmatic example of free labour as free-market capitalism developed there first. To the contrary, he argues, the persistence or even reinvigoration of master and servant laws in the 19th century meant that for much of the time labour was unfree. Labourers could be, and were, routinely imprisoned for contract breaches or compelled to perform their contracts. Steinfeld discusses the common law extension of the Master and Servant Act over different forms of contract, changes in the form of employment contracts that came to limit the application of the act, and finally the struggle over changing the act itself in the third quarter of the 19th century. The section concludes with a brief comparison of the British master and servant rules to similar rules in Europe and Canada.	5
In the third section, Steinfeld returns to look at the US. Now he focuses on Antebellum and Gilded Age contract enforcement mechanisms. A variety of different methods were attempted throughout the US. Steinfeld tracks the restrictions on non-pecuniary enforcement in the North and West beginning in the early 19th century, and throughout the whole of the US in the decades following the Civil War. At the same time he traces the rise and demise of various pecuniary mechanisms, such as wage forfeiture, that were used in the place of the pecuniary sanctions found in Great Britain.	6
Employers in both England and the US used the laws available to them to enforce contracts when they needed labour and to end contracts when labour was in less demand. Thus, he undermines any assertion that nominally "free" labour is essential for capitalist production. On the contrary, he argues that often even "free" labour systems such as existed in the US could compel workers so long as they could not afford the costs of the pecuniary remedies available to employers.	7
The research for the book is composed of reported cases, government printed papers, and secondary materials, a standard method for legal historians. This does open up vistas into the public reasoning of legislators, judges, and at times workers and employers. It also limits how much can be understood about what is going on on the ground, as workers and employers confront one another, and use, or threaten to use the law. Greater research into who brought cases forward, the decisions made by lawyers to frame cases in particular ways, and the local impact of decisions could offer greater depth to the analysis. Steinfeld cautions against assuming day-to-day practice from his study, a caution with which I agree. Christopher Frank's York University dissertation on mid-19th century British labour law shows how frequently workers' law suits turned not on the substantive law that Steinfeld discusses, but on questions of procedure.	8
Focusing on the persistence of unfree labour in employment law undermines a great deal of economic and legal theory about labour. Readers interested in grasping the development of labour law and the ideas and economies in which it was entwined will find this volume of great use. However difficult it is for historians to read out practice from the law Steinfeld discusses, his work offers an important analysis of 19th century labour law.	9
James Muir York University

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