Popular Law-making Part 9

Now, the reason of this great principle (peculiar, I think, to Anglo-Saxon law) lies at its very root. It is the principle of personal liberty again. To English notions, and to English courts, indefinite labor continued for an indefinite time, or applied to an indefinite number of services, is indistinguishable from slavery; and compulsory labor even under a definite labor contract, such as to work for a week or a month or a year, or in limited directions, as, for instance, to work at making shoes or weaving cloth, when enforced by the strong arm of the law, smacked too much of slavery to be tolerable by our ancestors. Thus it is that, alone of all contracts, if a man sign an agreement to work for us to-day, he may break it to-morrow and will not be compelled to perform it; our only redress is to sue him for damages, and this again because we can only act under the common law. Chancery at this point at least is forbidden to take cognizance of matters affecting personal liberty and labor; and the common law, as has been said, "sounds only in damages." It is only chancery that can compel a man to do or not to do some thing or to carry out a contract.

The other basic principle affecting all questions of labor law is that of freedom of trade or labor, correlative to the principle of freedom of contract as to property right, and, indeed, embodying that notion also. That is to say (perhaps I should say, to repeat) that an Englishman, an American, has a right to labor where and for whom and at what he will, and freely to make contract for such labor, and freely to exercise all trades, and not to be combined against by others, or competed with by a monopoly favored by the state. These last two clauses, of course, belong to our next chapter. This right of contract is not peculiar to the English law, as is the right not to be compelled to personal service, and is much better understood; though it is still earnestly argued by many advocates of union labor that there is no real freedom of contract, or, at least, equality of contract, between the employer and the employee; that therefore "collective bargaining" should be allowed, and that therefore, and furthermore, the wiser or the better organized should be permitted to combine to control the contract or the labor of the individual. But if we hold thoroughly these two principles before our mind we shall have the key to the understanding of our labor legislation; and if we add to that the third principle against conspiracy, we shall have the key to our more complicated legislation against trusts and blacklists and boycotts, and to an understanding of the more difficult questions, affecting labor in combination and the regulation of labor unions.

That there has been a vast deal of interference, or attempted interference, with these principles in modern American legislation goes without saying. The motive or force behind such legislation has pretty clearly two sources: First, the behest or desire of the "Labor interest" or organized labor, the trades-unions themselves; and when we a.n.a.lyze these and their const.i.tuents we shall find that it really means only mechanical or industrial labor, not farm or agricultural labor (which is still in numbers the greatest body of labor in the United States), nor, as yet, domestic service labor, nor what the census calls "personal service," which is probably next in numerical importance, nor clerks; it is a comparatively small cla.s.s in numbers, this cla.s.s of skilled mechanical or manufacturing labor, that has brought about this immense ma.s.s of legislation of our modern States aimed at improving their own labor conditions; and which therefore, necessarily perhaps, interferes with personal liberty as to the labor contract, or, at least, seeks to regulate it.

The other great influence is rather a motive than a source; we may call it, for want of a better word, the sentimental or the altruistic motive--the moral motive; the forces behind it being mainly of a religious or moral origin, philanthropists, students of ethics, and recently, to a great extent, the women and the women's clubs. The activity of these great forces may be clearly traced through the nineteenth century. It first belonged to the antislavery movement, which directly and historically led to the women's suffrage movement, owing to the fact that at a great antislavery convention in England a woman delegate was refused a seat upon the platform, while her husband, a comparatively obscure person, was recognized as the leading representative from America; and ending of late years in the prohibition movement, to regulate or prohibit the trade in intoxicating liquors, and to exclude the canteen from the army. But in the latest years, in these last very few years indeed, the forces of this category have devoted a large proportion of their "categorical imperative" to labor conditions and the labor contract.

These great forces are entirely impatient of const.i.tutional principles and somewhat indifferent as to the law, while always very desirous of making new statutes themselves. But their combined influence is enormous, so much so that almost any cause to which they devote themselves will in the long run succeed; unless, indeed, their attention is diverted to some other need, for it may be suggested that they are somewhat fickle of purpose. For example, their success in the antislavery movement makes the American history of the nineteenth century; in the prohibition movement they were, in the middle decades of that century, almost entirely successful, and while apparently there was a set-back in the twenty years of individualistic feeling which marked the growth of the Democratic party to an equality with its great rival, the movement of late years seems to have taken on renewed strength, probably on account of the so-called negro question in the South. And while, as to votes for women, they seem to have made no progress beyond the adoption twenty years ago of women's suffrage in four new Western States and Territories, this last year, it must be admitted, the movement has taken on a new strength in sympathy with the agitation in England. There are now already symptoms of a fourth cause--the reform of marriage, divorce and the laws regulating domestic relations, and the control of children. It is possible that these matters will be taken up actively in coming decades, and we, therefore, reserve them for a future chapter; this new effort is itself partly bound up with the women's suffrage movement, and in its latest manifestation--that of proposing legislation preventing men from marrying without permission from the state--it is a most picturesque example of that absence of const.i.tutional feeling we have just adverted to.

Now this freedom-of-contract principle is one which, of course, legislation attempting to regulate the labor contract is peculiarly liable to "run up against"; and it is, for this reason, not only or chiefly because "labor" is opposed to the Const.i.tution or because the courts are opposed to "labor," that so many statutes, pa.s.sed at least nominally in the interest of labor, have been by them declared unconst.i.tutional. For instance, it is a primary principle that an English free man of full age, under no disability, may control his person and his personal activities. He can work six, or four, or eight, or ten, or twelve, or twenty-four, or no hours a day if he choose, and any attempt to control him is impossible under the simplest principle of Anglo-Saxon liberty. Yet there is possibly a majority of the members of the labor unions who would wish to control him in this particular to-day; and will take for an example that under the police power the state has been permitted to control him in matters affecting the public health or safety, as, for instance, in the running of railway trains, or, in Utah, in labor in the mines. But freedom of contract in this connection results generally from personal liberty itself; although it results also from the right to property; that is to say, a man's wages (or his trade, for matter of that) is his property, and the right of property is of no practical use if you cannot have the right to make contracts concerning it.

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 unconst.i.tutional 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 pa.s.sing 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 Const.i.tution 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 cla.s.s was more desirous than the working cla.s.s 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 Ma.s.sachusetts 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 const.i.tutional 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 munic.i.p.ality of the State), or _for contractors employed directly or indirectly by the State or such munic.i.p.ality_, 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 unconst.i.tutional (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 pa.s.sed. Up to this const.i.tutional 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 inst.i.tutions--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 const.i.tutional 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 (Ma.s.sachusetts, Oregon, and Illinois), the Ma.s.sachusetts 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 const.i.tutional 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, rea.s.serted 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 unconst.i.tutional twenty years before, largely on the ground that to limit or prohibit the labor of woman would handicap her in her industrial compet.i.tion with man, pointing out also that the Illinois Const.i.tution itself prescribes and requires that the rights of the s.e.xes 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 pa.s.sed 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 const.i.tutional 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 pa.s.sed 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 unconst.i.tutional?

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 unconst.i.tutional.

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 const.i.tutional 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 const.i.tutionality has never been tested. For _public_ work, see below.]

[Footnote 2: Commonwealth _v._ Hamilton Manufacturing Co. 120 Ma.s.s.

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 const.i.tutional, 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 Const.i.tution 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 Ma.s.sachusetts Legislature, on the other hand, had in mind the compet.i.tion 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 const.i.tutional amendment on this point is impossible, although one has been repeatedly proposed, notably by the late Congressman Lovering of Ma.s.sachusetts, and such an amendment is still pending somewhere in that limbo of unadopted const.i.tutional 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, Ma.s.sachusetts, or even Cambridge; while on the Panama Ca.n.a.l 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 const.i.tutional.

It is curious to note, in pa.s.sing, 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 const.i.tutional principles of liberty of contract as against any statute. The courts of the North and East are more radical, and the courts of Ma.s.sachusetts 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 Ma.s.sachusetts 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 a.s.sume, 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 munic.i.p.ality 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 munic.i.p.ality or for contractors therefor, the eight-hour day is prescribed (California, Colorado, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Kansas, Maryland, Ma.s.sachusetts, 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 const.i.tutional. 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, Ma.s.sachusetts, 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, Ma.s.sachusetts, 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 Ma.s.sachusetts 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 Ma.s.sachusetts, 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 unconst.i.tutional or, if so, not for the reason of s.e.x discrimination.

[Footnote 1: Possibly unconst.i.tutional. 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 pa.s.sage.

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]

Ma.s.sachusetts, 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, Ma.s.sachusetts (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 (Ma.s.sachusetts, 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, Ma.s.sachusetts, 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.

(Ma.s.sachusetts).]

These laws will be found summarized in full in _Legislative Review_, No. 5, of the American a.s.sociation 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 const.i.tutions, 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 const.i.tutionality, 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 compet.i.tion with man. This was certainly the earlier view; but under the influence of certain voluntary philanthropic a.s.sociations 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, Ma.s.sachusetts, 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 a.s.sume this cannot mean service rendered to the parents in the house or on the farm; in fact it may be generally a.s.sumed 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,"