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Treatment of native peoples in the 19th century

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Interviewer: Your discussion of the West in Chapter 16 now draws on the experiences of settler societies in Australia, Canada, Argentina, and elsewhere. How would you assess the treatment of native peoples in these various places?

Eric Foner: Of course, in every society that is colonized, there is always the question of the relation with native peoples. But one pattern is that the more settlers coming in—white European settlers that are coming in or settlers from the east in the United States—the more conflict there is with Native Americans. So in places with few colonists, such as many parts of Spanish America, the native population remains in tact, it remains on the land. Often they have to pay tribute, they have to pay taxes, but they’re not displaced from their ancestral land holdings. But the places you mentioned—in the United States, parts of Australia, parts of Argentina, parts of Canada—when you get European settlers coming in, their aim is to push the natives out, it’s not to trade with them; it’s not to absorb them, it’s to get their land. Then you have a struggle that can’t be compromised. In all those places—whether it’s the aboriginal people in Australia, the indigenous people in the pampas of Argentina, western Canada, and of course the western United States—in all those places natives are pushed onto reservations, there’s a lot of warfare, many of them are killed, because whites just want their land. It’s not like they want them to work for the white settlers. People on small family farms or ranchers, miners who want the land enviably is going to mean the pushing out and the decimation of the native populations. That is a sad pattern that seems to exist in all of what we call settler societies. In nonsettler societies, say the British in India, where a fairly small number of British are there as colonists, there are a vast number of Indians. The British don’t try to push the Indians off their land. What they try to do is rule over them and in a sense profit from the labor of the Indian population. But they don’t say, you have to move off your land because we’re taking it; there’s just not enough British there to make that a viable policy.

Ideas of industrial expansion in the late 19th century

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Interviewer: What was the conception of freedom held by workers during the industrial expansion of the late nineteenth century?

Eric Foner: During the "Gilded Age," or the era of tremendous industrialization of the late nineteenth century, the question of what you might call "economic freedom" came to the fore of political debate. With slavery gone, that issue no longer was the major focus of controversy, and now the question was: How can workers, ordinary people, maintain economic freedom in a rapidly industrializing society in which economic power is extremely concentrated in the hands of corporations or very well-to-do people with no restraint on their ability to act? No longer would owning land be the basic definition of economic freedom, certainly not for industrial urban workers, so now they talked about other forms of what they called "industrial freedom." Some thought maybe they should start cooperative enterprises so that workers could be both owners and laborers at the same time. Some formed unions (the Knights of Labor, etc.) to try to demand rights collectively in the workplace that they couldn't achieve individually, but some notion of economic independence still determined what workers thought freedom was. It was just that they were looking for new ways of accomplishing it in an industrial society where agricultural freedom, owning land, may not have been relevant for everybody.

Ideas of freedom following the Civil War

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Interviewer: How did the workers' ideas of freedom differ from those held by the owners and managers of the industry, and how did the courts construe freedom at this time?

Eric Foner: Workers at this time often looked at the government to protect their freedom. They wanted the government to pass laws mandating eight hours as a legal day's work. They wanted the government to protect the right of workers to form unions. Owners tended to adopt a very laissez-faire notion of freedom, sometimes called "freedom of contract." That is, the government should stay out of economic relationships. "Freedom" meant the right of individuals to form economic relationships or to pursue economic self-interest without outside interference. Laws regulating conditions at work, laws regulating the hours of work—these were violations of freedom according to most employers, and the courts by and large accepted that idea. Freedom of contract was the dominant, legal doctrine in the late nineteenth and early twentieth century. The state courts, the supreme courts, overturned dozens and dozens of laws meant to regulate one or another aspect of economic activity. So the dominant idea of freedom was definitely a negative or laissez-faire idea of freedom of contract, of letting the economy operate without political interference.

Late-19th century industrial economy

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Interviewer: How did the distinctive farming and industrial economy take shape out West in the late nineteenth century?

Eric Foner: Of course the conquest of the far West was one of the dynamic economic processes of the late nineteenth century, and I am talking here about places like Colorado, Nevada, Utah, places like even California, large parts of it; these areas had not been very thickly settled before the Civil War. Now they were penetrated both by farmers and by large-scale industrial operations, mining operations, lumber operations. The West, in myth, was the home of the rugged individual, the self-made man, the pioneer. In fact, it was the home of large multinational corporations, or now it was national corporations, railroads, mines, etc. It was the home, increasingly, of large-scale farming, bonanza farms, etc. It became more and more difficult for individual farmers and individual workers to carve out a life of autonomy in the West at this time.

Gilded Age court decisions

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Interviewer: In your chapter on the Gilded Age, you discuss court decisions that held against labor on the grounds of individual freedom, specifically liberty of contract. Could you comment on the most important of these decisions?

Eric Foner: Sometimes they say the Supreme Court follows the election returns. As the North retreated from its commitment to racial equality, which had grown out of the Civil War, the importance of the Fourteenth Amendment shifts. The court begins to retreat from using the Fourteenth Amendment to protect the rights of blacks, and moves more and more toward using it to protect the basic rights of corporations.

Legally speaking, a corporation is a person, a kind of fictive person, in the law. The Fourteenth Amendment says no person can be deprived of life, liberty, or property without due process of law. In the 1870s, '80s, '90s, even into the twentieth century, state governments began passing laws regulating corporate behavior: laws limiting the number of hours a person could work, laws regulating rates on railroads, laws setting standards for laboring conditions in mines and factories. Over and over again, the Supreme Court would declare those laws unconstitutional under the Fourteenth Amendment. They deprived the "person"—the corporation—of their property, without due process of law. And this gave companies a free hand in trying to impose labor conditions that were often very oppressive, very dangerous.

Another famous case had to do with whether a company, particularly in mining communities, could pay people in scrip—not in real money, but in paper which was only good at a local company store. And you can see the abuses of that, because then the store could charge whatever price it wanted, and the scrip was only good there, so people weren't free to use their wages any way they wanted. States would pass laws barring that, and the Supreme Court overturned those laws on the grounds that they violated the right of property of these corporations. This is what's called freedom of contract jurisprudence. The Fourteenth Amendment came to be seen as protecting freedom of contract. That is, if you agreed to go to work under those circumstances, then you have no right to complain. You've made a contract, and the government has no right to intervene, to try to determine the conditions and circumstances under which labor takes place.