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Popular Law-making
by Frederic Jesup Stimson
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[Footnote 1: See above, p. 161; below, p. 213.]

[Footnote 2: In the old town of Plymouth the chairman of the selectmen asked what, he should do under vote of town meeting requiring him to pay two dollars a day for all unskilled labor employed by the town. "We have," he said, "about one hundred and twenty old men in Plymouth, largely veterans of the Civil War. We have been in the habit of giving them one dollar and a quarter per day. Under this two-dollar vote we cannot do it without bankrupting the town." He was advised to go ahead and still pay them the dollar and a quarter per day and take the chance of a lawsuit, which he did, and so far as the writer knows no lawsuit has ever been brought; but in all cases that would not be the result.]

[Footnote 3: This is law in Utah; but nevertheless a letter from a State government official informs me that women are willing to [and do?] work for a smaller salary.]

A principle somewhat akin to that of a vote of a town fixing the rate of wages is the recent constitutional amendment in the State of New York (see above, p. 161) which validated the statute requiring that in public work (that is to say, labor for the State, for cities, towns, counties, villages, school districts, or any municipality of the State), or for contractors employed directly or indirectly by the State or such municipality, that rate shall be paid which is usual at the time in the same trade in the same neighborhood. This was the earliest statute, which was declared unconstitutional (see above, p. 161). The lack of interest in this tremendously important matter is shown in the fact that not one-third of the voters took the trouble to vote on the amendment at all, and that for three days after the election no New York newspaper took notice of the fact that the amendment had passed. Up to this constitutional amendment the courts of New York, as well as those of California and even of the United States, had resented with great vigor the attempt of statutes to make a crime the permitting of a free American citizen to work over eight hours if he liked so to do. But in New York at least (now followed in Delaware, Maryland, and Oklahoma) it is now settled that so much interference even with the rate of wages may be allowed, and as the percentage of public employment is, of course, very large—covering as it does not only all public contractors, but all labor in or for gaols or public institutions—it will necessarily, it would seem, drag with it a certain practical regulation of private industry corresponding to the public rules.

In England, the New Zealand experiment has been tentatively begun; that is to say, in the last radical Parliament, in the autumn of 1909, the law was enacted, already referred to, for fixing wages by mixed commission (see above, p. 159); but otherwise than as above there is in the States and Territories of the United States, and in the United States itself, no regulation of wages, even of women or children, and no attempt, as yet, at a minimum wage law.

When we come to hours, the matter is very different. In the first place, we must be reminded that without a constitutional amendment you cannot have any direct or indirect legislation, as to general occupations, on the hours of labor of a man of full age.[1] You can have regulation of the hours of labor of a woman of full age in general employments, by court decision, in three States (Massachusetts, Oregon, and Illinois), the Massachusetts decision, carelessly rendered in 1876, without citing any authority whatever,[2] being based apparently on a vague notion of general sanitary reasons, without argument or apparently due consideration of the historical and constitutional law; but the Oregon case,[3] decided both by the State Supreme Court and by the Federal Court in so far as the Fourteenth Amendment was concerned, after most careful and thorough discussion and reasoning, reasserted the principle that a woman is the ward of the state, and therefore does not have the full liberty of contract allowed to a man. Whether this decision will or will not be pleasing to the leaders of feminist thought is a matter of considerable interest. A similar statute in Illinois had been declared unconstitutional twenty years before, largely on the ground that to limit or prohibit the labor of woman would handicap her in her industrial competition with man, pointing out also that the Illinois Constitution itself prescribes and requires that the rights of the sexes should in all respects be identical, save only in so far as jury and militia service and political rights were concerned. A new statute since the Oregon decision has been passed in Illinois and the law was sustained, reversing the older case. On the other hand New York courts take a position squarely contrary,[4] and so in Colorado.[5] The constitutional justification of these decisions must probably be that the health not only of the women themselves, but of the general public, or at least of posterity, is concerned, for, as we shall find more particularly when we discuss general legislation on the police power, to justify an interference with personal liberty of freemen there must, under English ideas, be a motive based upon the health, safety, and well-being of all of the whole community, not merely of the particular citizen concerned. He has the right to work in unhealthy trades at unhealthy times, or under unhealthy conditions, just as he has the right to consume unhealthy food and drink. If it be prohibited, it must be prohibited when it has a direct relation to the general welfare. For example, a railway engineer may be prohibited from working continuously for more than sixteen hours, for that is a direct danger to the safety of the public; but a man may not be prohibited from taking service for long hours as stoker on a steamship, although the life of a stoker be a short one and not over merry. Apparently, however, a woman can be; and indeed there have for a long time been laws prohibiting the labor of women in England and regulating their hours. But then there are laws prohibiting women from serving in immoral occupations, or occupations which are supposed to be dangerous to their morals, as, for instance, many States have laws against the serving of liquor, or even of food, by women or girls in places or restaurants where liquor is served, or for certain hours, or in certain places. Very conceivably a law might be passed prohibiting women and girls from the selling of programmes, or attending upon dime museums, or even selling newspapers, or being district messengers; but, as we all know, there are women cabmen in Paris. Would legislation prohibiting such employment to women be unconstitutional? There is already a considerable amount of it. The cases are conflicting, the earlier view, and the view taken in the South and in at least one Federal court, being that such laws are unconstitutional. The modern doctrine, backed up by that public opinion which we have above described as the ethical force, would seem to sustain them. The truth is probably that the legislature must be the sole judge of the expediency of such legislation; where the court can see that it does bear a direct relation to the morals of the young women concerned, or the morals of the general community, it will be sustained as constitutional under the police power, although to that extent interfering with the personal liberty of women and with their means of getting a livelihood.

[Footnote 1: Georgia and South Carolina have such law requiring sixty-six and sixty hours a week respectively in cotton and woollen manufacturing; but their constitutionality has never been tested. For public work, see below.]

[Footnote 2: Commonwealth v. Hamilton Manufacturing Co. 120 Mass. 383.]

[Footnote 3: Muller v. Oregon, 208 U.S. 412. So in Pennsylvania: Commonwealth v. Beatty, 23 Penn. C.C. 300.]

[Footnote 4: People v. Williams, 81 N.E. 778.]

[Footnote 5: Bucher v. People, 93 Pac. 14.]

As to children there is, of course, no question. Laws limiting their labor are perfectly constitutional, and some child-labor laws exist already in all States and Territories except Nevada. The only dispute on the child-labor question is whether such legislation should be Federal, or rather whether the Constitution should be so amended as to make Federal legislation possible. Practically this would meet with a very much wider opposition than is commonly supposed. The writer, acting as chairman of the National Conference of Commissioners on Uniformity of Legislation appointed under laws of more than thirty States of the Union and meeting in Detroit, Michigan, in 1895, brought this matter up under a resolution of the Legislature of the State of Massachusetts requesting him to do so. Nearly every Southern delegate and most of those from the West and from the Middle States were on their feet at once objecting, and the best he could do was to get it referred to a committee rather than have the Commonwealth of Massachusetts summarily snubbed. This committee, of course, never reported.

Undoubtedly climatic effects, social conditions, and dozens of other reasons make it difficult, if not unwise, to attempt to have the same rules as to hours of labor in all the States of our wide country. Boys and notably girls mature much earlier in the South than they do in the North; schooling conditions are not the same, homes are not so comfortable, the money may be more needed, the general level of education is less. Doubtless there are still areas in the South where on the whole it is better for a child of fourteen to be in a cotton mill than anywhere else he is likely to go, schools not existing. The Southern delegates resented interference with their State police power for these reasons. The Massachusetts Legislature, on the other hand, had in mind the competition of Southern mills, with cheap child labor, quite as much as any desire to benefit the white or negro children of the South; but the writer's experience convinced him that a constitutional amendment on this point is impossible, although one has been repeatedly proposed, notably by the late Congressman Lovering of Massachusetts, and such an amendment is still pending somewhere in that limbo of unadopted constitutional amendments for which no formal cemetery seems to have been prepared.

Even as to men, the labor of the Southern States is notably different from the labor of Lowell or Lawrence, Massachusetts, or even Cambridge; while on the Panama Canal or in most tropical countries the ordinary laborer likes to pretend that he is working eighteen hours a day, although most of the time is spent in eating or sleeping. Nevertheless, under the Federal law, all employees at Panama have to be given the eight-hour day required by the Federal statute, the Supreme Court having upheld that act as constitutional.

It is curious to note, in passing, the alignment of our courts upon this subject of hours of labor and general interference with the freedom of contract of employment. The Western and Southern States are most conservative; that is to say, most severe in enforcing the constitutional principles of liberty of contract as against any statute. The courts of the North and East are more radical, and the courts of Massachusetts and the United States most radical of all. I account for this fact on the ground that where the legislatures are over-radical, the courts tend to react into conservatism, and as the Western legislatures try many more startling experiments than are usually attempted in Massachusetts or New Jersey, the more intelligent public opinion has to depend on the courts to apply the curb. All this, of course, is a great mistake; for it forces undue responsibility on the courts, at least tends to control in an improper way the appointment of judges, and at best forces the most upright judge into a position where he should not be put—that of being a kind of king or lord chamberlain, with power to set aside improper or wrong legislation.

With these preliminary remarks we are now prepared to examine the legislation as it exists to-day (1910); cautioning our readers that this subject, as indeed all others concerning labor legislation, is so often tinkered in all our States as to make our statements of little permanent value, except that restrictions once imposed are rarely repealed. We may assume, therefore, that the law is at least as radical as it is herein presented.

The hours of labor of adults, males, in ordinary industries remain as yet unrestricted by law in any State of the Union; but several States have laws making a certain number of hours a day's work in the absence of contract;[1] and New York and a few other States have an eight-hour day in "public" work—that is to say, work directly for the State or any municipality or for a contractor undertaking such work.[2]

[Footnote 1: Thus eight hours (California, Connecticut, Illinois, Indiana, Missouri, New York, Ohio, Pennsylvania, Wisconsin); ten hours (Florida, Maine, Michigan—with pay for overtime—Minnesota, Montana, Maryland—for manufacturing corporations—Nebraska, New Hampshire, Rhode Island, South Carolina—in cotton and woollen mills—in New Jersey), fifty-five hours a week in factories; in Georgia eleven hours in manufacturing establishments, or from sunrise to sunset by all persons under twenty-one, mealtimes excluded (see below). But these laws do not usually apply to agricultural or domestic employment or to persons hired by the month.]

[Footnote 2: In public work, that is, work done for the State, or any county or municipality or for contractors therefor, the eight-hour day is prescribed (California, Colorado, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Kansas, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Porto Rico, Utah, Washington, West Virginia, Wisconsin, Wyoming, and the United States). But the provisions for overtime and compensation for overtime differ considerably.]

The labor of women (in mechanical trades, factories and laundries in Illinois, or in mercantile, hotel, telegraph, telephone, etc., as well, in Oregon) for more than a limit of ten hours per day in Illinois, or nine in Oregon, is prohibited and made a misdemeanor; and both these statutes have been held constitutional. But in many other States the hours of labor in factories or manufacturing establishments, even of adult women, are now regulated; while the labor of children, as we shall find, is regulated in nearly all. Thus, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia, and Washington have a ten-hour day in all manufacturing or mechanical employments for women of any age, which in Connecticut, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, and Washington extends to mercantile avocations also, in Louisiana only to specified dangerous trades; in Wisconsin, eight hours; and in Connecticut, Maine, Minnesota, New Hampshire there may not be more than fifty-eight hours a week, or in Massachusetts and Rhode Island, fifty-six, and in Michigan and Missouri, fifty-four. Arizona has an eight-hour day in laundries.

And these laws are extended to specified occupations, viz., in Connecticut to manufacturing, mechanical, and mercantile; in Illinois, mechanical, factory, or laundry; in Louisiana, unhealthful or dangerous occupations except agricultural or domestic; in Maine, mechanical and manufacturing except of perishable products; in Maryland, special kinds of manufactories; in Massachusetts, manufacturing, mechanical, mercantile, and restaurants; in Michigan, Minnesota, and Missouri, manufacturing, mechanical, and mercantile or laundries; in Nebraska, manufacturing, mercantile, hotel, or restaurant; in New Hampshire, New York,[1] North Dakota, Oklahoma, Rhode Island, manufacturing and mechanical; in Tennessee and Virginia, manufacturing only; in Washington and Oregon manufacturing, mechanical, mercantile, laundry, hotel, or restaurant, and in Wisconsin, mechanical or manufacturing. Georgia and South Carolina regulate the labor of women as they do of adult men[2] in factories. Such laws of course would not be unconstitutional or, if so, not for the reason of sex discrimination.

[Footnote 1: Possibly unconstitutional. See above.]

[Footnote 2: See above.]

Now all these laws arbitrarily regulate the hours of labor of women at any season without regard to their condition of health, and are therefore far behind the more intelligent legislation of Belgium, France, and Germany, which considers at all times their sanitary condition, and requires a period of rest for some weeks before and after childbirth. The best that can be said of them, therefore, is that they are a beginning. No law has attempted to prescribe the social condition of female industrial laborers, the bill introduced in Connecticut that no married woman should ever be allowed to work in factories having failed in its passage.

The hours of labor of minors, male and female, are limited in all States, except Florida, Missouri, Montana, Nebraska, Nevada, New Mexico, South Carolina, Texas, Vermont, Utah, Washington, West Virginia, and Wyoming, particularly in factories and stores, usually under an age limit of sixteen, to ten hours per day or fifty-eight hours a week.[1] But in Alabama, Arkansas, and Virginia, the age is as low as fourteen, and in California, Indiana,[2] Louisiana, Maine,[2] Massachusetts, Michigan, North Carolina, Ohio,[2] Pennsylvania,[2] and South Dakota,[2] it is eighteen. In California, Delaware, Idaho, and New York, it is nine hours, and in Colorado, District of Columbia, Illinois, Indiana, Kansas, New York,[3] North Dakota, Ohio, and Oklahoma, it is as low as eight hours a day, though the laws in several States, as in New York, are contrary and overlie each other. A corresponding limit, but sometimes less, is fixed for the week; that is, in the nine-hour States and some others, weekly labor may not exceed fifty-four hours or less.[4]

[Footnote 1: Connecticut, Maine, Massachusetts (in manufacturing, fifty-six), Mississippi, New Hampshire (nine hours, forty minutes), Pennsylvania. In others, sixty hours a week (Alabama, Arkansas, Indiana, Iowa, Kentucky, Maryland (in Baltimore only), Minnesota, New York, Oregon, South Dakota, Tennessee, Wisconsin).]

[Footnote 2: As to females only (Indiana, Maine, Ohio, Pennsylvania, South Dakota).]

[Footnote 3: In factories (New York).]

[Footnote 4: Fifty-four hours (Delaware, Idaho, Michigan, New York), fifty-five hours (New Jersey), fifty-six hours (Massachusetts, Rhode Island), forty-eight hours (District of Columbia, Illinois, Kansas, Ohio, Oklahoma), sixty-six hours (North Carolina).]

Night work in factories, etc., is prohibited in nearly all the States mentioned and in others.[1] Many States require working papers or certificates of age of the person employed, and there are often also certificates as to the required amount of schooling when necessary. Indeed it may be said that we are on the way to the German system of having time cards or certificates furnished by State machinery for all industrial workers, and such a system will, of course, be absolutely necessary should the State ever engage in old-age insurance, as has been done in Germany and England; though the practical difficulty of such a scheme would have been thought by our fathers insuperable on account of our Federal and State system of government, and the necessary free immigration of American workmen from one State into another.

[Footnote 1: Thus, night labor in factories to minors under fourteen (Arkansas, Georgia, Massachusetts, North Carolina, Texas, Virginia), twelve (South Carolina), eighteen (New Jersey), or sixteen (Alabama, California, Connecticut, Delaware, District of Columbia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin) is prohibited in factories or mercantile establishments (Connecticut, Iowa, Kansas, Michigan, New York), or any gainful occupation (Delaware, District of Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Wisconsin). In South Carolina the law only protects children under twelve from night labor in mines and factories. So in some as to all females only (Indiana), females under eighteen (Louisiana, Michigan, Ohio, Oklahoma, Pennsylvania), twenty-one (New York), and to any minor between 10 P.M. and 6 A.M. (Massachusetts).]

These laws will be found summarized in full in Legislative Review, No. 5, of the American Association for Labor Legislation, by Laura Scott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work").

It will be seen that in all respects practicable with our necessary system of individual liberty, doubly guaranteed by the constitutions, State and Federal, we are quite abreast of the more intelligent legislation of European countries as to hours of labor, women's and children's, except in a few States. But it should be remembered that these are largely agricultural or mining States, and doubtless when the abuse of child and woman labor presents itself it will be met as frankly and fairly there as in others.

On the constitutionality, if not the economic wisdom of laws regulating the hours of labor of women, at least of adult years, there still is decided difference of opinion. Logically it would perhaps seem as if those who believe in the "Woman's Rights" movement of uniform function for women and men, should be opposed to all such legislation; both on theoretical grounds as being a restraint of personal liberty, and as unequal legislation handicapping woman in her industrial competition with man. This was certainly the earlier view; but under the influence of certain voluntary philanthropic associations the tendency at present seems to be the other way.

The States which have laws prohibiting any labor of children whatever, even, apparently, agricultural or domestic,[1] are: Arizona, Arkansas, Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Maryland, Missouri, Massachusetts, Minnesota, Montana, Nebraska, New York, North Dakota, Oregon, Washington, and Wisconsin.

[Footnote 1: The New York law applies to "any business or service," but I assume this cannot mean service rendered to the parents in the house or on the farm; in fact it may be generally assumed that all these laws, even when they do not say so, mean only employment for hire; the Oregon and Wisconsin laws, to "any work for compensation"; the Washington law to "any inside employment, factory, mine, shop, store, except farm or household work." Arkansas, Delaware, Idaho, and Wisconsin, to "any gainful occupation"; Maryland, to "any business," etc., except farm labor in summer; Colorado, to labor for corporations, firms, or persons; the other State laws to any work.]

And the age limit fixed for such general employment is (without regard to schooling) under twelve, in Idaho and Maryland; under fourteen in Delaware, Illinois, and Wisconsin; and under fourteen for boys and sixteen for girls in Washington, if without permit, and under fifteen, for more than sixty days without the consent of the parent or guardian in Florida; in other States the prohibition rests on educational reasons, and covers only the time of year during which schools are in session; thus, under eight during school hours, or fourteen without certificate (Missouri); under fourteen during the time or term of school sessions (Connecticut, Colorado,[1] Massachusetts, Idaho, Kansas, Kentucky, Minnesota, New York, North Dakota); or under fourteen during actual school hours (Arizona,[2] Kentucky, Nebraska, Oregon); or under fifteen in Washington,[1] and under sixteen as to those who cannot read and write (Colorado, Connecticut,[3] Illinois,[3],[4]) or have not the required school instruction (Idaho, New York[1],[4]), or during school hours (Arkansas, Montana[1]), or who have not a labor permit (Maryland, Minnesota, Wisconsin). This resume shows a pretty general agreement on the absolute prohibition of child labor under fourteen, or under sixteen as to the uneducated; and the penalty is in most States only a fine inflicted on the employer, or, in some cases, the parent; but in Florida and Wisconsin it may be imprisonment; as it is in Alabama for a second offence.

[Footnote 1: Without schooling certificate.]

[Footnote 2: Without certificate of excuse.]

[Footnote 3: Unless the child attends a night school.]

[Footnote 4: Without age certificate.]

But more States fix a limit of age in the employment of children in factories or workshops, and particularly in mines; not so usually, however, in stores.[1] The age of absolute prohibition is usually fixed at fourteen or at sixteen in the absence of a certain amount of common-school education. These States are: Alabama,[2] Arkansas,[3,9] California,[4,9] Colorado,[5] Connecticut,[5] Delaware,[5,6] District of Columbia,[7,9] Florida,[3,9] Georgia,[8] Illinois,[5,9] Indiana,[9,10] Iowa.[11,9] Kansas and Kentucky[8] forbid factory labor for children under fourteen or between fourteen and sixteen without an age certificate or an employment certificate; Louisiana[9] has the usual statute, that is, absolute prohibition under fourteen and age certificate required for those between fourteen and sixteen, or, in the case of girls, between fourteen and eighteen, and the law applies to mercantile occupations where more than five persons are employed; the Maine statute is similar, but children above fifteen may work in mercantile establishments without age or schooling certificate, which is required of all those under sixteen in manufacturing or mechanical employment; in Maryland,[12] the prohibition age is still twelve, and the law applies to any business except farm labor in the summer; in Massachusetts,[12] absolute prohibition below fourteen, fourteen to sixteen without age or schooling certificate, and fourteen to eighteen, who cannot read and write; in Michigan,[12] absolute prohibition under fourteen, or sixteen without written permit; in Minnesota, the same ages, but the law applies to any employment; in Mississippi the ages are twelve and sixteen; in Missouri, absolute prohibition under eight, or fourteen without school certificate. New Hampshire[12] lags behind and has only an absolute prohibition to children under twelve, or during school under fourteen, or under sixteen without schooling certificate. In New Jersey, under fourteen, or sixteen with medical certificate; Nebraska[l2] and New York,[12] the usual absolute prohibition under fourteen, or under sixteen without employment certificate; North Carolina, under twelve, with an exception of oyster industries; North Dakota,[12] fourteen, or from fourteen to sixteen without employment certificate. In Ohio,[12] Oklahoma, Oregon,[12] Pennsylvania,[12] and Rhode Island,[12] the laws are practically identical, fourteen, or sixteen with certificate of schooling. South Carolina, absolute prohibition only under twelve, and not even then in textile establishments if the child has a dependency certificate. South Dakota,[12] under fifteen when school is in session; Tennessee, absolute under fourteen; Texas, under twelve, or under fourteen to those who cannot read and write unless the child has a parent to support. Vermont's limitation is purely educational; no child under sixteen can be employed in factories or mines who has not completed nine years of study. In Virginia[12] from March 1, 1910, there is absolute prohibition under fourteen except as to children between twelve and fourteen with a dependency certificate; Washington, under fifteen without schooling certificate, or in stores, etc., twelve. West Virginia, twelve, or fourteen when school is in session. Utah and Wyoming have no legislation except as to mines, nor do Colorado and Idaho protect women in them. Yet these are the four woman-suffrage States.

[Footnote 1: The law does apply to "mercantile establishments" (Alabama, Arkansas, California, District of Columbia, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Virginia, West Virginia).]

[Footnote 2: Absolute prohibition only under twelve. School and age certificate from twelve to sixteen; age certificate from sixteen to eighteen.]

[Footnote 3: The ages are fourteen and eighteen respectively, or sixteen in stores during school hours; in Florida, twelve, or when school is not in session, without an age, schooling, and medical certificate.]

[Footnote 4: Absolute prohibition under twelve or from twelve to fourteen during the school term or under sixteen to those who cannot read and write, and the law applies to mercantile establishments, hotel and messenger work, etc., making expressly the usual exemption of agricultural or domestic labor.]

[Footnote 5: Absolute prohibition under fourteen; from fourteen to sixteen without certificate (Connecticut, Illinois, Kansas, Kentucky), and medical certificate if demanded (Delaware).]

[Footnote 6: Any gainful occupation under fourteen. Except canning fruit, etc. (Delaware).]

[Footnote 7: Any business or occupation during school hours, except in the United States Senate, and the age is absolute prohibition under twelve; twelve to fourteen without a dependency permit, and fourteen to sixteen without schooling certificate.]

[Footnote 8: Absolute under twelve; twelve to fourteen without schooling certificate; fourteen to eighteen without age and schooling certificate except as to those who have already entered into employment. Does not apply to mines.]

[Footnote 9: This law applies to mercantile establishments, etc., as well.]

[Footnote 10: Absolute under fourteen, or under sixteen to those who cannot read and write.]

[Footnote 11: Prohibition is absolute under the age of fourteen, and applies to employment in mercantile establishments as well, or stores where more than eight people are employed.]

[Footnote 12: This law applies to mercantile establishments, etc., as well.]

The laws as to labor in mines are naturally more severe; although in some they are covered by the ordinary factory laws (Colorado, Florida, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Wisconsin). Female labor is absolutely forbidden in mines or works underground in Alabama, Arkansas, Illinois, Indiana, Missouri, New York, North Carolina, Oklahoma, Pennsylvania, Utah, Washington, Wyoming, and West Virginia,—in short, in most of the States except Idaho, Kansas, Iowa, Kentucky, Virginia, Wyoming, where mines exist; and the limit of male labor is usually put at from fourteen. (Alabama, Arkansas, Idaho, Indiana, Missouri, Ohio,[1] South Dakota, Tennessee, Utah, Wyoming) to sixteen (Illinois, Missouri,[2] Montana, New York, Oklahoma, Pennsylvania, Washington); or twelve (North Carolina, South Carolina, West Virginia), even in States which have no such legislation as to factories.

[Footnote 1: Fifteen during school year.]

[Footnote 2: Of those who can read and write.]

The laws as to elevators,[1] dangerous machinery,[2] or dangerous employment generally,[3] are even stricter, and as a rule apply to children of both sexes; the Massachusetts standard being, in the management of rapid elevators, the age of eighteen, in cleaning machinery in motion, fourteen, etc.; in other States, sixteen to eighteen.[4] The labor of all women in some States, and of girls or women under sixteen or eighteen in other States, is forbidden in occupations which require continual standing.[5] Females,[6] or minors,[7] or young children[8] are very generally forbidden from working or waiting in bar-rooms or restaurants where liquor is sold, and in a few States girls are prohibited from selling newspapers or acting as messengers.[9] The Northern States have a usual age limit for the employment of children in ordinary theatrical performances, and an absolute prohibition of such employment or of acrobatic, immoral, or mendicant employment. But in some States it appears there is only an age limit as to these.[10]

[Footnote 1: Indiana, Massachusetts, New York, Rhode Island, Kansas, Oregon.]

[Footnote 2: Connecticut, Iowa, Missouri, Oregon, Louisiana, New York.]

[Footnote 3: Illinois, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Wisconsin.]

[Footnote 4: Indiana, Iowa, Louisiana, New Jersey, New York, South Carolina.]

[Footnote 5: Illinois (under sixteen), Michigan (all), Minnesota (sixteen), Missouri (all), New York (sixteen), Ohio (all), Oklahoma (sixteen), Wisconsin (sixteen), Colorado (all over sixteen).]

[Footnote 6: Iowa, Louisiana, Michigan, Missouri, New Hampshire, New York, Vermont, Washington (except the wife of the proprietor or a member of the family).]

[Footnote 7: Arizona, Connecticut, Georgia, Pennsylvania, Idaho, Maryland, Michigan, Missouri, New Hampshire, South Dakota, Vermont.]

[Footnote 8: Florida, Illinois, Massachusetts, Missouri, Nebraska.]

[Footnote 9: New York, Oklahoma, Wisconsin.]

[Footnote 10: California, Kentucky, Maine, Maryland, Michigan, Missouri, Montana, New York, Oregon, Rhode Island, (sixteen years); Colorado, District of Columbia, Florida, Illinois, Kansas, New Hampshire, Virginia, Wisconsin, Wyoming (fourteen); Connecticut, Georgia, (twelve); Delaware, Indiana, Louisiana, Massachusetts, West Virginia (fifteen); Minnesota, New Jersey, Pennsylvania, Washington (eighteen).]

The hours for railroad and telegraph operators are limited in several States, but rather for the purpose of protecting the public safety than the employees themselves.[1] The following other trades are prohibited to women or girls: Boot-blacking,[2] or street trades generally;[3] work upon emery wheels, or wheels of any description in factories (Michigan), and in New York no female is allowed to operate or use abrasives, buffing wheels, or many other processes of polishing the baser metals, or iridium; selling magazines or newspapers in any public place, as to girls under sixteen,[4] public messenger service for telegraph and telephone companies as to girls under nineteen.[5]

[Footnote 1: Colorado, New York.]

[Footnote 2: District of Columbia, Wisconsin.]

[Footnote 3: District of Columbia, Wisconsin.]

[Footnote 4: New York, Oklahoma, Wisconsin.]

[Footnote 5: Washington.]

Leaving now the question of general employment, where no general laws limiting time or price would seem to be constitutional, except in certain cases as to the employment of women and in all cases that of children, and going to special occupations, we shall find quite a different principle; for in a special occupation known to be dangerous or unhealthy, certainly if dangerous or unhealthy to the general public, it has always been the custom and has always been constitutional with us to control conditions by statute. The question of what is a dangerous or unhealthy occupation to the public rather than merely to the persons employed is, of course, a difficult one; and the Supreme Court of the United States have split so closely on this point that they have in Utah decided that mining was an occupation dangerous to the public health, and in New York that the baking of bread was not. That is to say, that the condition of bakeshops bore no relation to the general health of the community. One might, perhaps, have expected that they would have decided each case the other way; but we must take our decisions as we get them from the Supreme Court, reserving our dissent for the text-books. In any event, it can be seen that the line is very close, certainly in the case of adult male labor. The same statute as to mines existed in Colorado that the United States Supreme Court sustained in Utah. The Colorado Supreme Court had declared it unconstitutional, and after the decision of the United States Supreme Court they continued to declare it unconstitutional, simply saying that the United States Supreme Court was wrong. Anyhow, it is obvious that in trades which involve a great mass of the people, or affect the whole community, or particularly where there are definite dangers, such as noxious vapors or tuberculosis-breeding dust, it will be constitutional, as it is common sense, to limit the conditions and even the hours of labor of women or men, as well as children. Students interested in such matters will find the universal legislation of the civilized world set forth in the invaluable labor-laws collection of the government of Belgium; and he will find that all countries of the world do regulate the hours of labor as well as the conditions, in all such trades, and we should not remain alone in refusing to do so.

The difficulty of regulating the hours of farm labor is, of course, obvious, and so far as I know, no attempt has yet been made. The same thing remains still true of domestic labor, though it has been more questioned. It should be noted that both domestic labor and farm labor belong to the class of what we call indefinite service. Now, indefinite service must always be regulated very carefully as to the length of the contract, which is never to be indefinite; that is to say, if it be both indefinite in the services rendered and in the time during which they are to last, it is in no way distinguishable from slavery. For instance, in Indiana, many years before the Civil War, there was an old negro woman who was induced to sign a contract to serve in a general way for life; that, of course, was held to be slavery. More recently the United States Supreme Court has held that a contract imposed upon a sailor whereby he agreed to ship as a mariner on the Pacific coast for a voyage to various other parts of the world and thence back was a contract so indefinite in length of time as to be unenforceable under free principles, although a sailor's contract is one which in a peculiar way carries with it indefinite service. And a contract "a tout faire" even for a week might be held void.

In all these matters the labor of women, and even that of children, will very often control the hours of labor of men; for instance, in the mills of New England, more than half the labor is not adult male; yet when any large class of the mill's operatives stop, the whole mill must stop; consequently, a law limiting the labor of women and children to fifty-six hours a week will be in practice enforced upon the adult males employed in the same mill.

Continental legislation has gone far beyond us in all these important particulars. In most countries the conditions surrounding the labor of women, particularly married women, are carefully regulated by law. She is not allowed to go back to the mill for a certain period after childbirth, and in many more particular respects her health is carefully looked after. Such legislation would possibly be impossible to enforce with our notions in America. The most interesting of all is perhaps the attempt made in the State of Connecticut within a few years to improve social conditions by providing that no married woman should be employed in factories at all. The bill was not, of course, carried, but it raises a most interesting sociological question. Ruskin probably would have been in favor of it. He described as the very last act of modern barbarism for the woman to be made "to shriek for a hold of the mattock herself." It was argued in Connecticut that the employment of married women injured the health of the children, which is perfectly true. Indeed, the death-rate in England is very largely determined by the fact whether their mothers are employed in mills or not. It was also argued that her competition with man merely halved his wages; that if no women were employed, the men would get much higher wages. On the other side it was argued that the effect of the law would be largely immoral because it would simply prevent women from getting married. Knowing that after marriage they would get no employment, they would simply dispense with the marriage ceremony; for it is obvious that under such legislation a man living with a woman unmarried could get double wages, which would be halved the moment he made her his wife. This last was evidently the view which prevailed; and so far as I know, no such law has in the civilized world yet been enacted, though there is doubtless a much stronger social prejudice against women entering ordinary employments in some countries than in others.

The constitutional question underlying all this discussion was perhaps best set forth by an experiment of the late Mr. Edward Atkinson, which he always threatened to bring into the courts, but I believe did not do so. "An Englishman's house is his castle"; an English woman's house is her castle. Atkinson proposed that a woman of full age, living in her own house, should connect her loom or spindles by electric wire to the nearest mill or factory, and then proceed to weave or spin more than the legal limit of nine hours per day. Would the state, under the broadest principles of English constitutional liberty, have the right to come in and tell her not to do so; particularly when the man in the next house remained free? Up to this time there is no doubt that a factory, a large congregation of labor, under peculiar conditions, presents a different question and a different constitutional aspect from that of the individual. This, indeed, is the principle which must justify the constitutional regulation of sweat-shops, as to which we will speak next.

The sweat-shop is the modern phrase for a house, frequently a dwelling, tenement, or home, not a factory, and not under the ownership or control of the person giving out the employment.

Now a factory may obviously be regulated under ordinary police principles; but when the first great case came up as to regulating labor in a man's own home, even though it was but one floor of a tenement, it was decided by the highest court of New York to be unconstitutional. The case was one concerning the manufacture of cigars, which by the statute was prohibited in tenement houses on any floor partly occupied for residence purposes.[1] Nevertheless it may be questioned whether, with the advancing social feeling in such matters, legislation would not be now sustained when clearly aimed at sanitary purposes, even though it interfered with trades conducted in a man's dwelling house. I hold that it is quite as possible for the arm of the state to interfere to prevent the baking of bread in bedrooms, for instance, as it is to seize upon clothing which has been exposed to scarlet fever. A man's home, under modern theories, is no more sacred against this police power than is his body against vaccination; and the last has been decided by the Supreme Court of the United States.[2]

[Footnote 1: In re Jacobs, 98 N.Y. 98. See the author's "Handbook to the Labor Law of the U.S.," p. 151.]

[Footnote 2: Massachusetts v. Jacobson, 197 U.S. 11.]

At all events, legislation may be aimed against sweat-shops which in any sense resemble factories—that is, where numbers of persons not the family of the occupier are engaged in industrial labor; so in Pennsylvania it has been extended to jurisdiction over shops maintained in the back yards of tenements; while in most States the statute applies to any dwelling where any person not a member of the family is employed, and general legislation against sweat-shops already exists in the twelve north-eastern industrial States from Massachusetts to Missouri and Wisconsin, leaving out only Rhode Island.

The Massachusetts law as at present forbids work upon clothing except by members of the family in any tenement without license, and thereupon subjects the premises to the inspection of the police, and registers of all help must be kept. Whoever offers for sale clothing made in a tenement not licensed must affix a tag or label two inches long bearing the words "Tenement Made," with the name of the State and city or town in which the garment was made. Moreover, any inspector may report to the State board of health that ready-made clothing manufactured under unhealthy conditions is being shipped into the State, which "shall thereupon make such orders as the public safety may require."[1] In New York the law applies to the manufacture of many articles besides clothing, such as artificial flowers, cigarettes, cigars, rubber, paper, confectionery, preserves, etc. A license may be denied to any tenement house if the records show that it is liable to any infectious or communicable disease or other unsanitary conditions. Articles not manufactured in tenements so licensed may not be sold or exposed for sale, and there is the same law as in Massachusetts as to goods coming in from outside the State, and there is the same exemption of apartments occupied by members of the family, and even then it appears that they are subject to the visitation of the board of health and must have a permit. The Pennsylvania law is similar to the New York law, and in addition, all persons are forbidden to bargain for sweat-shop labor, that is, labor in any kitchen, living-room, or bedroom in any tenement house except by the family actually resident therein, who must have a certificate from the board of health. The Wisconsin law apparently applies to persons doing the work in their own homes, who must have a license like anybody else, and the owner of the building is liable for its unlawful use. The Illinois and Maryland laws are similar to the New York law, while the Michigan statute resembles that of Wisconsin, apparently applying to members of the family as well. The Missouri law forbids the manufacture of clothing, etc., in tenements by more than three persons not immediate members of the family, while the New Jersey and Connecticut statutes content themselves with making such manufacture by persons not members of the family subject to inspection.

[Footnote 1: Massachusetts R.L., 106, secs. 56 to 60 inclusive.]

It is a curious commentary that the very dream of the social reformers of only twenty years ago is so rudely dispelled by the march of events; for in the late nineties it was the hope of the enthusiast, particularly the student in electrical science, that the factory system might in time be done away with, and by the use of power served from long or short distance over wires to a man's own habitation, all the industries of manufacture might be carried on in a man's own home—just as used to be the case with the spinners and weavers of olden time. Far from being a hope, it turns out that this breeds the very worst conditions of all, and the most difficult to regulate by law. For modern homes for the most part are not sanitary dwellings in the country, but single floors or parts of floors in huge tenement houses in great cities. It is probable to-day, therefore, that there is a perfect reversal of opinion, and that the social reformer now dreams of a world where no work is permitted in the home, other than ordinary domestic avocations, but all is compelled to be done in factories under the supervision of public authorities—a splendid example of the dangers of hasty legislation; for had we carried into law the eager desire of the reformers of only twenty years since, we should, it appears, have been on a hopelessly wrong track.

It should be noted, however, that the reform of conditions is very largely arrived at by a different path—that of the building laws in our cities. No more arbitrary rule exists to-day or was ever in history than the despotic sway of a board or commission created under modern police-power ideas. In everything else you have a right to a hearing, if not an appeal to the common-law courts and a jury; but the power of a building inspector is that of an Oriental despot. He can order you summarily to do a thing, or do it himself; or destroy or condemn your property; and you have no redress, nor compensation, nor even a lawsuit to recover compensation. Therefore, if the sweat-shop reformers may not constitutionally regulate the conditions and business of sweating so far as they would like to go, they can turn about and directly regulate the actual building of residences where the trade is carried on. They can require not only so many cubic feet of air per person in the sweat-shop, but so many cubic feet of air per person in every bedroom; as Ruskin said, not only, of grouse, so many brace to the acre, but of men and women—so many brace to the garret. A California law[1] once made it a criminal offence for any person to sleep with less than one thousand feet of air in his room for his own exclusive use! It is indeed a crime to be poor.

[Footnote 1: See Ah Kow, Nunan, 5 Sawyer, 552.]

This legislation to reform sweat-shops is a field which has been almost entirely cultivated by what I have termed the moral reformers, with little or no help from organized labor. One's observation is that organized labor has been mainly concerned with the price of wages, the length of hours, and with the closed shop; it has devoted very little of its energies to factory or trade conditions, except, indeed, that it has been very desirous of enforcing the union label, on which it asserts that union-made goods are always made under sanitary and moral conditions, and implies that the goods of "scab" manufacturers are not so.

The usual sweated trades in this country are the manufacture of clothing, underwear, tobacco, and artificial flowers. There has also been considerable regulation of laundries and bakeries, but not because they are what is commonly called sweated trades.

The bulk of factory legislation is too vast for more than mention in a general way. It fills probably one-fourth in mass of the labor laws of the whole country, and applies in great and varying detail to the general condition of factories, workshops, and in most States to large stores—department stores—using the word in the American sense. It may be broadly analyzed as legislation for the construction of factories, for fresh air in factories, for general sanitary conditions, such as the removal of dust and noxious gases, white-washing, sanitary appliances, over-crowding, stair-cases, fire-escapes, and the prohibition of dangerous machinery. As has been said, it was begun in Massachusetts in the fifth decade of the last century, based originally almost entirely on the English factory acts, which were bitterly attacked by the laissez-faire school of the early nineteenth century, but soon vindicated themselves as legitimate legislation in England, although not even there—still less in our States—have we gone so far as the Continental countries.

Closely connected with this may be mentioned that vast domain of law which is known as employers' liability. Under the old strict common-law rule, a servant or employee could never recover damages for any injury caused in whole or in part by his own negligence, by the negligence of a fellow servant or even by defective machinery, unless he was able to prove beyond peradventure that this existed known to the employer and was the sole and direct cause of the accident. As is matter of common knowledge, the tendency of all modern legislation, particularly the English and our own, has been to chip one corner after another off these principles. The fellow-servant rule has been very generally abolished by statute, or in many States fellow servants have been defined and divided into classes so that the master is not relieved of liability when the injury to the servant is caused by the negligence of a servant not in actual fact his fellow, i.e., employed with him in his own particular work. In like manner the exemption for contributory negligence has been pared down and the liability for dangerous or defective appliances increased, practically to the point that the master becomes the insurer of his machinery in this particular. The recent English statute goes to the length of putting the liability on the employer or on an employment fund in all cases.

The writer is strongly of opinion that this radical reform is, so far as constitutional, the end to be aimed at. The immense expense and waste caused by present litigation, the complete uncertainty both as to liability and as to the amount of damages, the general fraud, oppression, and deceit that the present system leads to, and finally its hideous waste and extravagance, are all reasons for doing away with it entirely. He believes that for the employer's own benefit if there were a statute with a definite scale of damages, providing definitely, and as part of the employment contract if necessary, with a certain small deduction from the wages, that there should be insurance, that the master should be actually liable on a fixed scale for all injuries suffered while in his employment not in disobedience to his orders or solely and grossly negligent, it would be far better both for employer and employee. To-day it is possible that in many cases the employee gets no damages or is cheated out of them, or they are wasted in litigation expense (the Indiana Bar Association reported this year that only about thirty per cent. of the damages actually recovered of the employer reaches the party injured); while on the other hand the master can never know for how much he is going to be liable, and in the rare cases which get to a jury they are apt to find an excessive verdict. It is the custom with most gentlemen to pay a reasonable allowance to any servant injured while in their employ, unless directly disobedient of orders. There is no practical reason why this moral obligation should not be embodied in a statute and extended to everybody. The scale of damages should of course be put so low as not to encourage persons to expose themselves, still less their own children, to injury in the hope of getting monetary compensation. But although in India we are told the natives throw themselves under the wheels of automobiles, it is not probable that in American civilization there would be serious abuse of the law in this particular. Five thousand dollars, for instance, for loss of life or limb or eye, with a scale going down, as does the German law, to a mere compensation for time lost and medical attendance in ordinary injuries, would be sufficient in equity and would surely not encourage persons voluntarily to maim themselves.

The next great line of legislation concerns the mode of payment of wages. The amount, as has been said, is never regulated; but it has been customary for nearly a century for the law to require payment in cash, or at least that it be not compulsorily made in goods or supplies, or still worse in store orders. This line of legislation is commonly known as the anti-truck laws and exists in most States, but has been strenuously opposed in the South and Southwest as interfering with the liberty of contract, so that in those more conservative States the courts have very often nullified such legislation. It may be summarized as follows:

(1) Weekly or time payment laws. These exist in more than half the States, and are always constitutional as to corporations, but are possibly unconstitutional in all States except Massachusetts when applied to private employers.

(2) Cash-payment laws, requiring payments to be made in actual money. These statutes are commonly combined with those last mentioned and are subject to the same constitutional objections. As a part of them, or in connection with them, we will put the ordinary anti-truck laws—that is, legislation forbidding payment in produce or supplies or commodities of any kind. Finally, the store-order laws forbidding payment to be made in orders for indefinite supplies on any particular store, still less on a store owned or operated by the company or employer. Such laws have sometimes been held unconstitutional in all particulars, sometimes when they apply only to certain industries, as, for instance, mines. In the writer's opinion they are never constitutional when applied to corporations, nor are they class legislation when applied to mines, for the reason that it is well known that mines are situated in remote districts where there are few stores, and that the maintenance of a company store has not only led to much cheating but to an actual condition of peonage. That is to say, the miners would be held in debt and led to believe that they could not leave the mine or employment until the debt was liquidated. Belonging usually to the most ignorant class, it is matter of common knowledge that this has been done, and that Poles, negroes, or others of the more recent immigrants have been permanently kept in debt to the company store or by advances or in other ways, as for rent or board.

(3) Closely allied to such legislation, of course, is the legislation against factory tenements or dwellings, but there is probably less real abuse here, and therefore a greater constitutional objection against laws forbidding houses, especially model houses, to be built and rented by the employer. Such efforts, unfortunately, have not usually been popular. Far from helping labor conditions, they seem to have caused great resentment, as was notably the case in Pullman, Illinois, and very recently in Ludlow, Massachusetts. It may be that the American temperament prefers its own house, and resents being compelled to live in a house, however superior, designed for him and assigned to him by his employer.

(4) The next matter which has evoked the attention of philanthropists and the angry resentment of the persons they supposed they were trying to benefit, is that of the benefit or company insurance or pension funds. The principle of withholding, or contracting with the employees to withhold, a small proportion of their wages weekly or monthly to go into an endowment or benefit fund, even when the company itself contributes as much or more, was instituted with sanguine hopes some forty years ago, first in the great Calumet & Hecla Copper Company, and then in some of the larger railroads; and was on the point of meeting general acceptance when it evoked the hostility of organized labor, which secured legislation in Ohio and other States making it a crime, or at least unlawful, for either side to make a contract whereby any part of the wages was taken or withheld for such purposes. The German theory of old-age pensions is based upon this principle; but it is so unpopular in America that frequently in the South, when things are done for the workmen, they are hardly permitted to know it; a pretence, at least, is made that their own contributions are the entire support of the hospital, library, reading-room, or whatever it may be, when, in fact, the lion's share is borne by the company. There is no doubt that the American laborer resents being done good to, except by himself; and is organized to resent any system of beneficence to the point of making it actually prohibited by the law.

Much of the legislation described in this chapter is wise, and probably all of it is wise in intention. Yet, in closing, one cannot resist calling attention to the unforeseen dangers that always attend legislation running counter to the broad general basis of Anglo-Saxon civilization. One need make no fetich of freedom of contract to believe that laws aimed against it may hit us in unexpected ways. For one famous example, the cash weekly-payment law in Illinois existed in 1893. In that year there was a great panic. Nobody could obtain any money; mills and shops were closing down, particularly in Chicago. Everybody was being thrown out of employment, and distress to the point of starvation ensued. In the very worst days of that panic some of the largest and most charitable employers of labor met their employees in a monster mass meeting, and reported that while they could not pay in full and nothing apparently was in prospect but an actual shutdown, they had succeeded in getting enough cash to keep all their employees, provided they would take weekly half what was owing to them in money, and the short-time notes or obligations of the firms, or even of banks, for the remainder. The offer evoked the greatest enthusiasm, was unanimously accepted by the thousands of employees, and amid great rejoicing the meeting adjourned;—only to find by the advice of their counsel next morning that under the laws of the State of Illinois such a settlement was made a crime, and that for every workman who received his wages each week only half in cash, the employer would be liable to a one-hundred-dollar fine, and thirty days' imprisonment.

The great reform, not of legislation but of condition, in the labor question, is unquestionably to arrive at a status of contract. Hitherto the principle that seems to have been accepted by organized labor, at least in America, is that of being organized for purposes of offence, not for defence; like a mob or rabble which can attack united, but retreats each for himself; which demands, but cannot give; which, like a naughty child or person non compos, is not responsible for its own actions. Still there is, as yet, no legislation aimed at or permitting a definite contract in ordinary industrial employment; although there are a few laws which provide that when the employee may not leave without notice, the employer may not discharge him without a corresponding notice except for cause.

As relating mainly to strikes or concerted action, the question of arbitration and conciliation laws will be left for the next chapter; but we may close our discussion of individual legislation by calling attention to the striking attempt to revive mediaeval principles of compulsory labor in certain avocations and in certain portions of this country. The cardinal rule that the contract of labor may not be compelled to be carried out, that an injunction will not issue to perform a labor contract, or even in ordinary cases against breaking it, is, of course, violated by any such legislation; but ingenious attempts have been made to get around it in the Southern States.

This world-wide problem is really rather a racial problem than an economic one amongst Anglo-Saxons. The inability of the African and the Caucasian to live side by side on an equality largely results from this economic 'question' which, broadly stated, is that the Caucasian is willing to work beyond his immediate need voluntarily and without physical compulsion; the African in his natural state is not. The American Indian had the same prejudice against manual labor; but rather that, as a gentleman, he thought himself above it; and his character was such that he always successfully resisted any attempts at enslavement or even compulsory service. The negro, on the other hand, is not above such work, but merely is lazy and needs the impulse of actual hunger or the orders of an overseer. We are, of course, speaking of the mass of the people, in their natural state, before any enlightenment gained by contact with more civilized races. The whole question is discussed on its broadest lines by Mr. Meredith Townsend in his luminous work, "Asia and Europe." He seems hopelessly to conclude that there is no possibility of white and black permanently living together as part of one industrial civilization unless the latter race is definitely under the orders of the former. Without assenting to this view it may be admitted that it is one which has very largely prevailed in the Southern States, and the difficulty there is, of course, with agricultural labor. So fast as the negro can be made a peasant proprietor, the question seems to be in a measure solved; but it is alleged to be almost impossible to get the necessary labor from negroes when done for others, under contract or otherwise. There is, therefore, a mass of recent legislation in the Southern States which we may entitle the peonage laws, which range from the highly objectionable and unconstitutional statute compelling a person to carry out his contract of labor under penalty as for a misdemeanor, to the more ingenious statutes which get at the same result by the indirect means of declaring a person guilty of breaking a contract under which he has acquired money or supplies punishable as for fraud. There are also statutes applying and very greatly extending the old common-law doctrine of loss of service; making it highly criminal for a neighbor to incite a servant or employee to break his contract or even to accept the work of a laborer without ascertaining that he has not broken such contract, as, for instance, by a certificate of discharge from his last master. These laws, it will be seen, differ in no particular from the early labor laws in England, which we carefully summarized for this purpose; except, indeed, that they do stop short of the old English legislation which provided that when a laborer broke his contract or refused to work he could be committed before the nearest magistrate and summarily punished. Even this result, however, has been arrived at by the more circuitous and ingenious legislation of Southern States such as in Georgia, cited in the charge to the Grand Jury.[1] The principle of this elaborate machinery is always that money advances, or supplies, or a lease of a farm for a season or more, or the loan of a mule, having first been made under written contract to the negro, the breaking of such contract or the omission to repay such advances, is declared to be in the nature of fraud; the entering into such contract with intention to break it is declared to be a misdemeanor, etc., etc. The negro refusing to carry out his labor contract is then cited before the nearest magistrate, who imposes under the statute a nominal fine. The negro, being of course unable to pay this fine, is remanded to the custody of his bondsmen, who pay it for him, one of them of course being the master. The negro leaves the court in custody of his employer and carries away the impression with him that he has escaped jail only by being committed by the court to his employer to do his employer's work, an impression possibly not too remote from the fact. It is easy to see how to the African mind the magistrate may appear like an Oriental cadi, and how he may be led to carry out his work as submissively as would the Oriental under similar circumstances.

[Footnote 1: Jaremillo v. Parsons, 1 N.M. 190; in re Lewis, 114 Fed. 963; Peonage cases, 123 Fed. 671; United States v. McClellan, 127 Fed. 971; United States v. Eberhard, 127 Fed. 971; Peonage cases, 136 Fed. 707; charge to jury, 138 Fed. 686; Robertson v. Baldwin, 165 U.S. 275; Clyatt v. United States, 197 U.S. 207; Vance v. State, 57 S.E. 889, Bailey v. Alabama, 211 U.S. 452; Torrey v. Alabama, 37 So. 332.]

There can be no question, except in the minds of those utterly unfamiliar with the tropics and Southern conditions generally, of the difficulty of this labor problem throughout the world. It has appeared not only in our Southern States but in the West Indies and South Africa—in any country where colored labor is employed. The writer knows of at least one large plantation in the South where many hundred negroes were employed to get in the cotton crops, and the employer was careful never to deliver their letters until the season had terminated; for on the merest invitation to attend a ball or a wedding in some neighboring county, the bulk of the help would leave for that purpose and might or might not return. Railway labor is not so difficult, because the workmen commonly work in gangs under an overseer who usually assumes, if he is not vested with, some physical authority; but the case of the individual farmer who is trusted upon his own exertions to till a field or get in the crop seems to be almost impossible of regulation under a strict English common-law system. Farming on shares appears to be almost equally unsatisfactory. The farmer gets his subsistence, but the share of the proprietor in the crop produced is almost inappreciable.

In closing this chapter reference should be made to a large amount of American legislation, most of which was absolutely unnecessary as merely embodying the common law. Still it has its use in extending the definition of the "unlawful act." It will be remembered that one of the three branches of conspiracy was the combination to effect a lawful end by unlawful acts. Now many of the States have statutes declaring even threats, or intimidation without physical violence, to be such unlawful act. It may possibly be doubted whether it might not have been so held at the common law; but such legislation has always the advantage of getting a uniform line of decisions from all the judges. The New York statute passed many years ago may serve as a sample: It provides in substance that any threat or intimidation or abusive epithets or the hiding of tools or clothes, when done even by one individual, is an unlawful act; therefore when strikers, although engaged in a lawful strike, as to raise their own wages, or any one of them, intend or do any such act, they become guilty of unlawful conspiracy.

This is probably the only legislation on such matters which adds anything to the common law. Many of the States, usually Western States—apt to be more forgetful of the common law than the older Commonwealths—have been at pains to pass statutes against blacklists. Such statutes are entirely unnecessary, but as they relate to combinations they will be considered in the next chapter.

From the official report of the U.S. government, prepared by the Commission of Labor in 1907, it appears that twenty States and Territories, including Porto Rico, have provisions against intimidation, of which the best example is the New York statute quoted above. Alabama and Colorado have express statutes against picketing, other than the general statutes against interference with employment. Nineteen other States, of which, however, only a few—Massachusetts, Michigan, Oregon, Texas, and Utah—are the same, have provisions against the coercion of employees in trading or industry, usually to prevent them from joining unions, but such statutes are also levelled against the compelling them to buy or trade in any shop, or to rent or board at any house. Five States have statutes prohibiting the hiring of armed guards other than the regular police, and especially the importing such from other States, Massachusetts and Illinois among the number, though none of the five are so radical as the later statute of Oklahoma quoted below. Statutes for the enforcement of the labor contract exist usually only in the South, but we find a beginning of similar legislation in the North, both Michigan and Minnesota having statutes making it a misdemeanor to enter into a labor contract without intent to perform it in cases where advances are made by way of transportation, supplies, or other benefits. The new anti-tip statute or law forbidding commissions to any servant or employee is to be found in Michigan, Wisconsin, and other States (see page 155 above). A few States require any employer to give a discharged employee a written statement of the reason for his discharge, but such statutes are probably unconstitutional. Colorado has the extraordinary statute forbidding employees to be discharged by reason of age. The common law of loss of service is strengthened generally in the Southern States by statutes against the enticing of employees. Public employment offices, as well as State labor bureaus, are now maintained in nearly all the States.

Examinations and licenses are now required in the several States of electricians, engineers, horse-shoers, mining foremen, elevator operators, plumbers, railroad employees, stationary firemen and engineers, and street railway employees, in addition to the trades enumerated on page 147.

All the Northeastern States except Maine and Vermont, and Maryland, Delaware, West Virginia, Alabama, Missouri, Tennessee, Wisconsin, Michigan, Illinois, Indiana, South Dakota, and Washington have general factory acts, and all the mining States have elaborate statutes for the safety of mines.

New York and Wisconsin have statutes forbidding or making illegal labor unions which exclude their members from serving in the militia.

Connecticut and Massachusetts have laws to facilitate profit-sharing by corporations. Such statutes would seem hardly necessary, as profits may be shared or stock distributed or sold without a law to that effect; if it be regarded as part of the reward of wages, no injunction would be granted to protesting stockholders. Fifteen States and Territories, including Porto Rico, have laws for the protection of employees as members of labor unions, and five as members of the national guard or militia, similar to the New York statute just mentioned. Nearly all the States have laws for the protection of employees as voters, as by requiring half holidays or reasonable time to vote, or that their pay should not be given them in envelopes upon which is printed any request to vote or other political material.

Nearly all the States require seats for female employees, and New Jersey requires seats for horse-car drivers. Five States have general provisions regulating the employment of women; ten forbid their employment in bar-rooms (see page 226 above); three regulate their hours of labor to an inequality with men; and most of the States forbid females to be employed in mines or underground generally, or, as we have noted above, in night labor. California, Illinois, and Washington provide that sex shall be no disqualification for employment. Four States, among them Illinois, require employers seeking labor by advertisement to mention (if such be the case) that there is a strike in their establishment; twelve States (see above, page 231) have so far tackled the sweat-shop problem, while practically every State in the Union makes wages a preferred claim in cases of death or insolvency of the employer.

There is, however, one matter we have reserved for the last, because it is one of the two or three points about which the immediate contest before us is to rage. That is the case of individual discharge. It is elementary that just as an employee may leave with cause or without cause, so an employer may discharge without cause or with cause, nor is he bound to state his reasons, and certain statutes requiring him to do so with the object of avoiding a blacklist have been declared unconstitutional in Southern States. But organized labor is naturally very desirous of resenting the discharge of anybody for no other reason than that of being a union man. In fact it is not too much to say that this, with the legalization of the boycott, are the two great demands the unions are now making upon society. Therefore, statutes have been passed in many States making it unlawful for the employer to make it a condition of employment that the employee should not be a member of a union; or to discharge a person for the reason that he is a member of a union. And closely connected with this is the combination of union employees to force an employer to discharge a man because he is not a member of a union. This last will come logically under the next chapter covering combinations and is not yet the subject of any statute. Now the difficulty of these statutes, about the discharge of union labor, is that it is almost impossible to go into the motive; a man is discharged "for the good of the service." It is easy, of course, to provide that there should be no written or definite contract on the matter; but it is not easy to punish or prohibit the discharge itself without such contract. Such legislation has, however, been universally held unconstitutional, so that at present this must be the final word on the subject. The right of the employer to employ whom he likes and to discharge whom he likes and make a preference, if he choose, either for union or non-union labor, is one which cannot be taken away from him by legislation, according to decisions of the Supreme Courts of Missouri, New York, and the United States. Therefore, as the matter at present stands, the constitutions, State and Federal, must be amended if that cardinal right of trade and labor is to be interfered with.

In closing it may be wise to run over the actual labor laws passed in the States during the last twenty years, mentioning the more important lines of legislation so as to show the general tendency.

Beginning in 1890 we find most of the statutes concern the counterfeiting of union labels, arbitration laws, hours of labor in State employments, weekly payment laws, the preference of debts for labor in cases of insolvency, the prohibition of railroad relief funds, the hours of women and children in factories, seats for women in shops, the restriction of prison labor, dangerous machinery in factories, protection in mines, and the incorporation of trades-unions. Mechanics' lien laws are passed in large quantities every year and are the subject of endless amendment. We will, therefore, leave this out for the rest of our discussion as after all affecting only the owners of real estate.

In 1891 we find more laws regulating or limiting the hours of labor of women and children, prohibiting it entirely in mines; several anti-truck laws; two laws against the screening of coal before the miner is paid, and in Massachusetts, laws against imposing fines for imperfect weaving and deducting the fine from the wages paid. Pennsylvania thinks it necessary to enact by statute that a strike is lawful when the wages are insufficient or it is contrary to union rules to work, which latter part is clearly unconstitutional. There is one statute against boycotting and three against blacklisting.

In 1892 there are more laws limiting the hours of labor of women and children to fifty-eight, or in New Jersey, fifty-five, hours a week; laws against weavers' fines, and restricting the continuous hours of railway men. The sweat-shop acts first appear in this year, and the statutes forbidding the discharge of men for belonging to a union or making a condition of their employment that they do not belong to one.

In 1893 the laws establishing State bureaus of labor become numerous. Four more States adopt sweat-shop laws, and there is further regulation of child labor. Six States adopt statutes against blacklisting.

In 1894, being the year after the panic, labor legislation is largely arrested. New York adopts the statute, afterward held constitutional, requiring that only citizens of the United States should be employed on public works, and statutes begin to appear to provide for the unemployed. There is legislation also against intimidation by unions, against blacklisting, and against convict-made goods.

In 1895 there is still less legislation; only a statute for State arbitration, against payment of wages in store orders, against discrimination against unions, and for factory legislation may be noted.

In 1896 there are a few statutes for State arbitration and weekly payment, for regulating the doctrine of fellow servants, and some legislation concerning factories and sweat-shops.

In 1897 California provides a minimum wage of two dollars on public contracts, and Kansas adopts the first statute against what are termed indirect contempts; that is, requiring trial by jury for contempts not committed in the presence of the court. There is a little legislation against blacklisting, and Southern States forbid the farming out of convict labor.

In 1898 Virginia copies the Kansas statute against indirect contempts, and one or two States require convict-made goods manufactured outside the State to be so labelled, which statutes have since been held unconstitutional as an interference with interstate commerce.

In 1899 the question of discrimination against union labor becomes still more prominent and it is in some States made a misdemeanor to make the belonging or not belonging to a union a condition of employment. All these statutes have since been held unconstitutional.

In 1900, a year of great prosperity, there is almost no labor legislation.

In 1901 we only find laws establishing free employment bureaus, except that California provides a maximum time for women and children of nine hours a day in both manufacturing and mercantile occupations, and a minimum wage upon all public work of twenty cents an hour.

In 1902 Colorado overrules her Supreme Court by getting by constitutional amendment an eight-hour day in mines. Massachusetts passes a joint resolution of the Legislature asking for a Federal constitutional amendment which shall permit Congress to fix uniform hours of labor throughout the United States, and Kentucky and other Southern States begin to legislate to control the hours of labor of women and children.

In 1903 this movement continues and in the Northwestern States, Oregon and Colorado, the length of hours of labor of women of all ages is generally limited. Weekly payments and anti-truck laws are adopted. Montana forbids company boarding-houses and Colorado makes the striking attempt to do away with the so-called dead line; that is to say, a statute forbidding any person to be discharged by reason of age, between the years of eighteen and sixty. California follows Maryland in abolishing the conspiracy law, both as applied to employers and employees.[1] It does not seem that in either State this statute has yet been tested as class legislation. Legislation against the open shop continues in far Western States, while Minnesota makes it a misdemeanor for an employer to exact as a condition of employment that the employee shall not take part in a strike.

[Footnote 1: See the next chapter.]

In 1904 there is little legislation. Far Western States go on with the protection of child labor, particularly in mines, and Alabama adopts a general statute against picketing, boycotting, and blacklisting.

In 1905 we first find legislation against peonage or compulsory labor in the Southern States, North Carolina and Alabama. The celebrated constitutional amendment of New York is enacted, which gives the Legislature full power to regulate wages, hours, and conditions in public labor. (See above, p. 161.) Further regulation of factories and mines goes on, with State employment agencies and reform of the employers' liability laws. Colorado and Utah prohibit boycotts and blacklisting, and in one or two States corporations are required to give every person discharged a letter stating the reason of his discharge, which statute was since held unconstitutional in Georgia.

In 1906 the usual sanitary legislation goes on. Massachusetts adopts an eight-hour law for public work. Arkansas and Louisiana attempt legislation preventing the violation of contract by persons farming on shares, or the hiring of farm laborers by others, and Massachusetts establishes free employment bureaus.

In 1907 four more Southern States attempt laws to control agricultural labor; the factory acts and child-labor laws continue to spread through the South; New York largely develops its line of sweat-shop legislation, and more child-labor laws and laws prohibiting the work of women in mines are introduced in the South.

In 1908 Oklahoma adopts the Kansas contempt statute, and Virginia provides for appeals to the Supreme Court in contempt cases. South Carolina makes it a misdemeanor to fail to work after being employed on a contract for personal services, or for the employer on his side to fail to carry it out. Oklahoma adopts a curious strike statute which, besides the usual provision for the closed shop, makes it a felony to bring workmen, i.e., strike-breakers, from other places in the State or from other States under false pretences, including, in the latter, concealment of the existence of the strike; and makes it a felony to hire armed men to guard such persons.

With this climax of labor legislation our review may properly end, but the reader will not fail to note the advantage that may be derived from experience of these extraordinary statutes as they are tried out in the different States and Territories. It could be wished that some machinery could be provided for obtaining information as to their practical working. The legislation of 1909 was principally concerned with the matter of employers' liability for accidents, a conference upon this subject having been held by three State commissions, New York, Minnesota, and Wisconsin. Massachusetts extended the act of 1908 permitting employers and employees to contract for the compensation of accidents; and Montana established a State accident insurance for coal-miners. California and Montana exempted labor in a large degree from the operation of the State anti-trust laws; but Washington adopted a new statute defining a conspiracy to exist when two or more persons interfere or threaten to interfere with the trade, tools, or property of another, and proof of an overt act is not necessary. North and South Carolina, Texas, and Connecticut passed the usual statute protecting employees from being discharged because of membership in a trades-union, which, as we have said, has been held unconstitutional wherever contested. Arizona, California, Idaho, Washington, Wyoming and Nevada enacted or amended eight-hour measures for employees in mines, but little was accomplished for children in the Southern States.[1]

[Footnote 1: See "Progressive Tendencies in the Labor Legislation of 1909," by Irene Osgood, in the American Political Science Review for May, 1910.]

The labor-injunction question has been recently covered by an admirable study prepared by the Massachusetts Bureau of Statistics and published in December, 1909. The investigation covers eleven years, from 1898 to 1908, in which there occurred two thousand and two strikes. In sixty-six of these strikes the employers sought injunctions and in forty-six cases injunctions were actually issued. In only nine cases were there proceedings for contempt of these injunctions, while only in two cases out of the two thousand were there any convictions for contempt of court. In eighteen cases injunctions were sought to prevent employees from striking, but only in four of these were they granted, and one of these was later dissolved. Seven bills were brought by employees against unions for interference with their employment, etc., and in three cases unions sought injunctions against other unions. In one case a union brought a bill against an employer and in one case an employer sought an injunction against an employers' association. Under a decision of the Massachusetts Supreme Court it was declared unlawful for a trade-union to impose fines upon those of its members who refused to obey its orders to strike or engage in a boycott. In 1909 a bill was introduced in the Legislature with the special object of permitting this, but it failed of passage. The Bulletin contains a brief history of equity jurisdiction in labor cases and reprints all the decisions of the Supreme Court of Massachusetts down to the year 1909, and the actual injunctions issued by Superior Courts in five late cases, with a chronological summary of proceedings in cases concerning industrial disputes in all Massachusetts courts for the eleven years covered by the report.

The matter of labor legislation is of such world-wide importance that a word or two may not be out of place concerning recent legislation in other countries. Other than factory and sweat-shop acts and hours of labor laws, there are three great lines of modern legislation in Europe, North America, and Australasia: employers' liability, old-age pensions, minimum wage. On the first point, the tendency of modern legislation, as has been intimated, is to make the employer liable in all cases for personal injuries suffered in his employ without regard to contributory negligence or the cause of the accident. That is, it is in the nature of an insurance which the employer is made to carry as part of his business expenses. It has the great advantage of doing away with litigation and confining his liability to reasonable amounts, and in the writer's opinion is in the long run for the benefit of the employer himself. There is one exception. The employer is not liable when the injury was caused by the wilful misconduct of the workman injured.

Old-age pensions, or State insurance against old age as well as disability, now exist in several countries, notably Germany, New Zealand, and England. The German law[1] is much the most intelligent and the least communistic in that it provides that half the fund is raised by deductions made from the wages of the workmen themselves. It applies to all persons, male and female, employed under salary or wages as workmen, journeymen, apprentices, or servants; also to all industrial workmen, skilled laborers, clerks, porters, and assistants; also to all other persons whose occupation consists principally in the service of others, such as teachers who do not receive an annual salary of more than five hundred dollars; also to sailors and railway employees; also to domestic servants. No one is obliged to insure himself who is over the age of seventy, and no one is bound to insure who does not work in a required insurance class for more than twelve weeks or fifty days in each year. When women get married, they insist on reimbursement of one half of all the insurance assessments they have paid up to that time, provided such assessments amount to two hundred weeks, or four years—a provision which must very much help out marriages, and from which the amusing deduction may be drawn that the average value of a husband in Germany is considered to be about one-half the expense of supporting his wife for a period of two hundred weeks, or four years. On the other hand, the law has the effect of postponing marriage for the first four years of a woman's employment, as it practically imposes a penalty upon a woman marrying before four years from the time when she begins to pay to the State insurance money.

[Footnote 1: U.S. Industrial Commission Reports, vol. V, pp. 228-241.]

The English old-age pension law is a mere gratuity in the nature of outdoor relief, giving to everybody who has reached a certain age, without reference to any previous service, tramps or drones as well as workmen. It is a law indefensible in principle and merely the accident of a radical government. It provides that every person over seventy whose yearly means do not exceed thirty-one pounds ten shillings (i.e. income from property or privilege) and is not in "regular receipt of poor relief" and has not "habitually failed to work according to his ability, opportunity and need" nor been sentenced to any imprisonment for a criminal offence—all to be determined by a local pension committee with appeal to the central pension authority—shall receive a pension of five shillings a week when his annual means do not exceed twenty-one pounds, that is, thirteen pounds a year, down to one shilling a week when they exceed twenty-eight pounds seventeen shillings six pence.

The New Zealand law is more intelligent. It extends old-age pensions to every person over the age of sixty-five who has resided thirty-five years in the colony and not been imprisoned for a criminal offence, nor has abandoned his wife, nor neglected to provide for his or her children. It does not, however, appear that any previous employment is necessary. The pension amounts to eighteen pounds, say ninety dollars, a year and is not given to any one who has an income of fifty-two pounds a year. The machinery of the law is largely conducted through the post-office and the entire expense is met by the state. That is to say, there is no contribution from the laborers themselves.

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