I don’t want to talk about it

Book the First.  Chapter the Fourteenth.  Of MASTER and SERVANT.

This chapter is about the legal concepts and rules that create and regulate the roles of servant and master, a coupling Blackstone deems the first of “three great relations in private life.”  p. 410.  (The others are husband-wife and parent-child.)  It is striking that Blackstone chose to base his discussion of social relationships on one that makes me uncomfortable even to say, let alone participate in.  I don’t know a single person who would think it was cool to announce today that she had — or was — a servant or a master.  Do we even have servants in the Blackstonian sense in Brooklyn, New York, Anno Domine 2010?   Yes and no, I think, and I think the ambiguities of that situation and my discomfort with it  reveal something about the divergences and convergences of our world and Blackstone’s.

Without a doubt, my reaction is partly to do with slavery.  When I see the “master-servant” dyad, that’s my first association. On some level, the term “servant” is just a place holder — a variant or a euphemism.  I  still remember the time I went on a tour of an old plantation in Louisiana, and the docent was walking us through the rooms and out buildings — here the day parlor, there the woodworking shop — and we came to the remains of some old rough shacks, which she didn’t name, and someone asked “what’s that” and she said “This is where the servants slept.”  Not that everyone felt the need for such circumlocution.  Up the road a mile or so was a restaurant serving catfish and gumbo in a ramshackle building that was being maintained in something resembling its original rough hewn state.  As we sat down to order, my cousin cheerfully announced that we were in the slave quarters.  Jesus, I thought, would you turn the barracks at Auschwitz into a biergarten?  But I still ate my gumbo.  

Obviously not every American is going to think  of slaves when she hears about servants.  Still I think I’m not the only one to feel an uneasy continuum there, a slippery slope that leads at one end to overwhelming violence, pain, guilt, shame and denial.  It’s like there’s a fourth term missing from Blackstone’s trio of founding social relations.  if we’re playing this game in the United States today, it’s going to have to be:  Slave,  Servant, Spouse, Child.  Actually, there are signs that Blackstone consciously chopped off that continuum.  One of the most interesting parts of the Commentaries is the repeated condemnation of slavery.  More than once, Blackstone squarely asserts that “the law of England abhors, and will not tolerate, the existence of slavery within this nation.” p. 412. (see also p. 123)  Slavery not only wasn’t the paradigmatic other half of the servant-master pair, it was the negative, the opposite example against which that relation was constituted — the antithesis of legal servitude. 

Robert Cover points out that when Blackstone made his confident assertion about the common law’s rejection of slavery, there wasn’t a lot of authority to back him up.  Justice Accused at 16.  It was some ten years before Somerset’s Case created precedent to that effect.  But Blackstone didn’t admit to any ambiguity.   In a sense he couldn’t.  For Blackstone, the cornerstone value of individual liberty is constituted as the negative image of a totalizing sovereign prerogative — exactly the prerogative of a master over a slave.  Beyond the structure of the master-servant relationship, Blackstone’s common law itself was defined in opposition to slavery, which exemplified a lawless arbitrary power over those subjected to it.  

You might even say that the raison d’etre of Blackstone’s common law is the institutionalization of a kind of autonomous personhood that can best be understood as a rejection of the rational possibility of slavery.  In such a regime, slavery is not merely forbidden; it is incandescent — like some toxic gas that dissipates when it hits the fresh common law air: so that “a slave or a negro, the instant he lands in England, becomes a free man.”  p. 412  If it’s true that Lincoln first studied law by reading and re-reading Blackstone, that may be one reason he was so righteously ready to defy the U.S. Supreme Court’s contrary view (in the infamous Dred Scott decision) of what happens when a slave enters a free jurisdiction.  For Lincoln, Blackstone adherent, the Supreme Court’s view that slavery would persist in a state where no positive law constructed it may have been not merely wrong but incoherent, a violation of reality as much as morality — for his (legal) bible told him so.    

On the other side of the Atlantic, by making slavery the lawless antagonist against which civil liberty is defined, Blackstone managed to construct (non-slave) servitude as lawful and dignified.  It is no accident, I think, that this chapter begins with an examination — and legal rejection — of slavery before proceeding to discuss the first lawful “relation of private life.”  If slavery is the barbaric nightmare of arbitrary subjection, legally organized “service” is presented here as the very model of civilized personal relationships.  It is at once freely chosen and socially given — a connection that “arises” from deliberate contract and is maintained by “a principle of natural equity.”  p. 413  

In this scheme, the master-servant bond is the perfect hybrid of common law and natural law principles — god given morality crossed with manmade rules and rooted in natural order:  “If the hiring be general without any particular time limited, the law construes it to be a hiring for a year; upon a a principle of natural equity, that the servant shall serve and the master maintain him, throughout all the revolutions of the respective seasons.” p. 413. Here is a relationship that connects the infinite variety of conscious individual choices with the timeless cycles of the natural world.   That’s a legal structure that’s doing a lot normative work.  What’s more, apparently in 18th-century Britain, marriage and servitude were legally linked by more than Blackstone’s trifecta of service, marriage, and family.  If you weren’t married, you could basically be drafted as a servant.  Unmarried people with no “visible livelihood”– including boys and girls as young as 12 — were “compellable by two justices to go out to service for the promotion of honest industry.”  p. 413.  So much for the glorious common law’s protection of personal autonomy.     

Here is where my enthusiasm for the American project comes thundering back.  Whatever its failures, it is different to live in a world where twelve-year-olds are legally compelled to go to school rather than to empty chamber pots.  And manifestly it is a whole different kettle of fish to be a servant — and to have one — in a world where servitude is a kind of latent identity made manifest upon the order of government officials.  There is no personal “service” in this Blackstonian sense in my world today — and yet, and yet . . . .  Take a walk to the playground by my daughter’s school and see who’s minding the children too young for kindergarten.  In this mostly white New York neighborhood, white baby sitters are rare, and so are baby sitters of any color who were born in this country.  Pushing strollers and handing out bagels and juice boxes are dark skinned women whose multilingual conversations reflect their own childhoods on southern islands and eastern continents.  In a nation that ended slavery by war, not law, that’s a picture that can call a kind of reeling chaos of loss into a sunny day in the sprinkler.  

So, in a sense, like Blackstone, we are anxious to construct our most basic personal relations against the model of slavery.  But while Blackstone was privileged to do that constructing at a literary arm’s length we are doing it daily in a messy and bodybound way.  It’s a kind of mess that seems to contain both more horror and more hope than Blackstone’s confident taxonomy of Upstairs/Downstairs domestics, apprentices, laborers and stewards.  It’s a daily struggle, really, to make something good out of a mess like this. And now I wonder again if that isn’t something like what Blackstone felt, after all — not only the need to rationalize existing class relations but a plodding, insistent drive to dig for the shapes that could make sense of it all, that could enable change as well as stability.

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2 Comments

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2 responses to “I don’t want to talk about it

  1. jacob

    Pardon my ignorance, but what’s the big deal? Isn’t “master/servant” legalese for “Boss/employee”? In both cases one works for the other but is free to leave whenever he/she wants (at least in theory). There are all sorts of continuums in types of employments, from distasteful to acceptable, such as prostitute, to artists model, to performer, to movie star, etc. Similarly one might find it objectionable when they say any not yet 21 year old human is an “infant” (isn’t that a legal term?).
    Some fascinating stories about slavery in its everyday form are in a book called “The Conjur Woman” by Charles Chesnutt.

  2. blackstoneweekly

    I don’t disagree with anything you say — I just think it is only half the picture, the world through one side of the looking glass. It’s certainly true that there are many different employment relationships available now — and there were surely many in Blackstone’s time and place as well. And it is also true that the legal category of “master/servant” is a way of marking a range of relationships that are subject to certain legal rules. What I’m trying to get at is something else that I think the legal categories are doing — besides marking regulatory territory. My point is that law is also constituting the terrain — that the legal concepts and rules don’t just define how the law deals with a preexisting reality. Laws about servants and masters, slaves, and, yes, infants, don’t just regulate how people in these roles are allowed to behave, or how others are constrained to treat them without risking liability, they make certain sorts of social roles and relationships possible in the first place. As something I read recently by Alain Pottage pointed out, the legal rules that govern a certain role or identity are not just “institutional clothing of a ‘real’ (natural, biological, or social person)” they are part of what “fabricates” that person in the first place. And I’m just starting to realize that the kinds of personas a legal system makes up are part of what defines the values of that law. So it works both ways. So a “servant” in Blackstone’s England and our NYC are both the same and different roles, shaped by the gaps and overlaps between our respective legal systems. In that sense it is questionable whether there was any such thing as a “boss” or “employee” in Blackstone’s time in the sense that we take for granted. That is partly the result of the way our laws have evolved, and, at the same time, the ubiquity of those particular roles is part of what makes our legal system what it is today.

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