Chapter 12: is the one relating to scutage, from the word scutum, (8)

The only matter more important doubtless in the laborer's eye than the length of time he shall work is the amount of wages he shall receive. Now we may say at the start that in the English-speaking world there has been practically no attempt to regulate the _amount_ of wages. We found such legislation in mediaeval England, and we also found that it was abandoned with general consent. But of late years in these socialistic days (using again socialistic in its proper sense of that which controls personal liberty for the interest of the community or state) it is surprisingly showing its head once more. In Australasia and more recently in England we see the beginning of a minimum wage system which we must most carefully describe before we leave the subject. There was in the State of Indiana a law that in ordinary unskilled labor in public employment there should be a minimum wage of fifteen cents per hour or twenty-five cents for a man and horse--since declared unconstitutional by Indiana courts: while to-day such labor receives a minimum of two dollars per day in California and Nebraska, one dollar and a quarter in Hawaii, three dollars in Nevada, and "the usual rate" in Delaware and New York,[1] and we are many of us familiar with the practice of towns and villages in New England or New York in passing a vote or town ordinance fixing the price of wages at two dollars per day, or a like sum; but this practice, it must be remarked, is in no sense a _law_ regulating wages; it is merely the resolution or resolve of an employer himself, as a private citizen might say that he would give his gardener fifty dollars a month instead of forty. And, on the other hand, the Constitution of Louisiana provides that the price of wages shall never be fixed by law. Now it will be remembered that the Statutes of Laborers of the Middle Ages, when they regulated the price of wages, led directly to the result that they made all strikes, all concerted efforts to get an increase of wages, unlawful and even criminal; in fact, it may be said that this attempt to bind the workmen to a wage fixed by law was the very cause of the notion that strikes were illegal, which, indeed, was the English common law down to early in the last century. Moreover, when an English mediaeval peasant refused to labor for his three pence a day he might be sent to gaol by the nearest justice of the peace, as, perhaps, some employers would like to do to-day in our South, and which resulted--if not in slavery--in precisely that condition which we call "peonage." Economically speaking, the attempt to regulate wages was, of course, a mistake; politically speaking, it was universally unpopular, and no class was more desirous than the working class themselves of getting rid of all such legislation, which they did in France at the French Revolution, and in England nearly two centuries earlier. Only socialists should logically desire to go back to the system, and in the one modern English-speaking State which is largely socialistic--New Zealand--it is said that the minimum wage law has had the effect that a similar resolve has had in Massachusetts towns: to drive all the old men and all the weaker or less skilled out of employment entirely, and into the poorhouse;[2] for, at a fixed price, it is obvious that the employer will employ only the most efficient labor, and the same argument causes some of their more thoughtful friends to dissuade the women school-teachers in New York from their present effort to get their wages or salaries fixed by law at a price equal to that paid a man.[3]

[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 résumé 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 "_à 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.