Lea VanderVelde


Historically, the law of master-servant allowed corporal punishment. Today it seems strange to contemplate that intentionally inflicted violence was ever an acceptable method of compelling workers to labor in America. Strange as it seems, the practice of striking servants to discipline them was considered a legitimate, implicit part of the relationship between masters and servants. Servants, as well as slaves, could be subjected to cuffings and even severe beatings as means of “correction” and compulsion to labor. Menial servants, apprentices, and domestic servants could be beaten with hands, fists, straps, sticks, and sometimes whips, all in the name of correction and chastisement. Children and wives could also be subject to corporal punishment. Certainly there were varying degrees of beating deemed appropriate for different statuses of dependent persons within the household—a slap was the slightest, whippings were severe—yet our legal system authorized the master to impose corporal punishment on all persons subservient to him. Some early statutes even shored up this prerogative by holding a master harmless for injuries done to his servants while in the act of “correcting” them. In sharp contrast, the common law has always considered nonconsensual intentional touching to be tortious. A battery occurs when one person touches another to even the slightest degree, Blackstone wrote. Yet, Blackstone added that there was an exception specifically for servants. The existence of an employment relationship authorized the master to strike a servant with the very intention of inflicting pain. Masters held a right of chastisement over everyone under their dominion, including those who lived in their households or worked for them. Together, the authorization in one chapter and this exception to tort doctrine in another, constitute Blackstone’s rule on corporal punishment of servants. Yet servants could never strike their masters. There is no more graphic indicia of legal asymmetry than a rule that authorizes the dominant actor to strike the subordinate and forbids the subordinate from fighting back. This Article will explore the demise of Blackstone’s rule in the legal discourse, examining its transformation, and situating that transformation in the context of other social sites where striking a subordinate was deemed acceptable.