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Title: Some ethical gains through legislation
Author: Florence Kelley
Release date: September 12, 2026 [eBook #79561]
Language: English
Original publication: New York: The Macmillan Company, 1905
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*** START OF THE PROJECT GUTENBERG EBOOK SOME ETHICAL GAINS THROUGH LEGISLATION ***
THE CITIZEN’S LIBRARY
OF
ECONOMICS, POLITICS, AND
SOCIOLOGY
EDITED BY
RICHARD T. ELY, PH.D., LL.D.
PROFESSOR OF POLITICAL ECONOMY,
UNIVERSITY OF WISCONSIN
SOME ETHICAL GAINS
THROUGH LEGISLATION
THE CITIZEN’S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY
_12mo._ _Half Leather_ _$1.25 net, each_
=MONOPOLIES AND TRUSTS.= By RICHARD T. ELY, PH.D., LL.D.
=THE ECONOMICS OF DISTRIBUTION.= By JOHN A. HOBSON.
=WORLD POLITICS.= By PAUL S. REINSCH, PH.D., LL.B.
=ECONOMIC CRISES.= By EDWARD D. JONES, PH.D.
=OUTLINES OF ECONOMICS.= By RICHARD T. ELY.
=GOVERNMENT IN SWITZERLAND.= By JOHN MARTIN VINCENT, PH.D.
=ESSAYS ON THE MONETARY HISTORY OF THE UNITED STATES.= By CHARLES J.
BULLOCK, PH.D.
=SOCIAL CONTROL.= By EDWARD A. ROSS, PH.D.
=HISTORY OF POLITICAL PARTIES IN THE UNITED STATES.= By JESSE MACY,
LL.D.
=MUNICIPAL ENGINEERING AND SANITATION.= By M. N. BAKER, PH.B.
=DEMOCRACY AND SOCIAL ETHICS.= By JANE ADDAMS.
=COLONIAL GOVERNMENT.= By PAUL S. REINSCH, PH.D., LL.B.
=AMERICAN MUNICIPAL PROGRESS.= By CHARLES ZUEBLIN, B.D.
=IRRIGATION INSTITUTIONS.= By ELWOOD MEAD, C.E., M.S.
=RAILWAY LEGISLATION IN THE UNITED STATES.= By BALTHASAR H. MEYER,
PH.D.
=STUDIES IN THE EVOLUTION OF INDUSTRIAL SOCIETY.= By RICHARD T. ELY,
PH.D., LL.D.
=THE AMERICAN CITY.= By DELOS F. WILCOX, PH.D.
=MONEY.= By DAVID KINLEY, PH.D.
=THE FOUNDATIONS OF SOCIOLOGY.= By EDWARD A. ROSS.
=THE ELEMENTS OF SOCIOLOGY.= By FRANK W. BLACKMAR, PH.D.
=COLONIAL ADMINISTRATION.= By PAUL S. REINSCH.
=AN INTRODUCTION TO THE STUDY OF AGRICULTURAL ECONOMICS.= By HENRY C.
TAYLOR, M.S.AGR., PH.D.
=SOME ETHICAL GAINS THROUGH LEGISLATION.= By FLORENCE KELLEY.
THE MACMILLAN COMPANY
64-66 FIFTH AVENUE
NEW YORK
_THE CITIZEN’S LIBRARY_
Some Ethical Gains
Through Legislation
BY
FLORENCE KELLEY
GENERAL SECRETARY
OF THE NATIONAL CONSUMERS LEAGUE
New York
THE MACMILLAN COMPANY
LONDON: MACMILLAN & CO., LTD.
1910
_All Rights Reserved_
COPYRIGHT, 1905
BY THE MACMILLAN COMPANY
Set up and Electrotyped.
Published October, 1905
Reprinted July, 1910
THE MASON-HENRY PRESS
Syracuse, New York.
To
C. B. K.
PREFACE
The substance of this volume has grown out of the writer’s experience
as special agent for the Bureau of Labor Statistics of Illinois for
an investigation of the needle-trades in the tenements of Chicago, in
1892; as Chief Inspector of Factories of that state from 1893 to 1897;
as agent in charge of the Chicago division of the investigation of the
“Slums of Great Cities” for the Department of Labor at Washington; and
as Secretary of the National Consumers’ League from 1899 to the date
of publication; but chiefly as a resident for thirteen years beginning
in 1892, first at Hull-House in Chicago and afterward at the Nurses’
Settlement in New York. Lest it seem strange that one of the laity
should discuss statutes and the decisions of courts of last resort, it
may be well to state that the writer has for many years been a member
of the bar of Illinois.
The subject matter has been presented in part to the students of
several universities and colleges; and published, also in part, in the
Annals of the American Academy of Political and Social Science, the
American Journal of Sociology, the Chautauquan and Charities, to which
acknowledgment is due for courteous permission to reprint. Thanks are
due also to the West Publishing Company for the text of decisions;
and to patient friends whose searching criticism has led to many
modifications both of substance and form.
While the present volume was in press, Mayor Dunne of Chicago appointed
to the Board of Education of that city, Miss Jane Addams of Hull-House,
Mrs. Emmons Blaine and Dr. Cornelia De Bey. It remains to be seen how
far these able and public spirited citizens may disprove the argument
advanced in chapter V.
That portion of this book which is of permanent value is to be found
in the appendices. These are commended to the careful attention of the
reader because, without a full understanding of the judicial decisions
thus brought together, it is impossible to comprehend the difficulties
which have been overcome in the sadly incomplete process of freeing
the conscience of the purchasing public from participation in gross
industrial evils; and to estimate justly the obstacles which still
beset the path of the growing body of citizens of the Republic who
elect to pursue this discouraging yet indispensable line of civic duty,
the permanent establishment of ethical gains through legislation.
FLORENCE KELLEY.
NEW YORK, SEPTEMBER, 1905.
CONTENTS
CHAPTER I
THE RIGHT TO CHILDHOOD 3
Young Children Working in Tenement Houses 6
Young Children in Domestic Work 8
Children in Street Occupations 11
Telegraph and Messenger Boys 15
Children in Retail Trade 26
Children in Manufacture 33
The Glass Bottle Industry 43
CHAPTER II
THE CHILD, THE STATE, AND THE NATION 58
Consequences of Recognition of the Child’s Right
to Exemption from Work 66
Inter-State Aspect of the Right to Childhood 81
Legislation Needed in the Near Future 91
A United States Commission for Children 99
CHAPTER III
THE RIGHT TO LEISURE 105
The Unsought Leisure of Prosperous Women 112
Enforced Idleness is not Leisure 116
Increased Speed Calls for Leisure 120
Methods of Establishing the Right to Leisure 125
CHAPTER IV
JUDICIAL INTERPRETATION OF THE RIGHT TO LEISURE 127
The Right to Leisure Accorded to Public Servants 128
The Right to Leisure of Wage-Earning Women
and Children 132
The Illinois Decision of 1895 (Ritchie _vs._ The
People) 139
The Right to Leisure of Workingmen 145
Trade Agreements and Statutes 165
CHAPTER V
THE RIGHT OF WOMEN TO THE BALLOT 172
Women’s Opportunities on Public Boards and
Commissions 173
Need of Women in Educational Work 178
Protection of Children in Colorado 190
Advantages of the Recognition of the Right of
Women to the Ballot 195
Right of Women to a Share in the Enactment of
Marriage and Divorce Laws 206
CHAPTER VI
THE RIGHTS OF PURCHASERS 209
Ignorance of Conditions of Production 212
Some Typical Purchasers 216
Efforts to Enlighten Purchasers 220
CHAPTER VII
THE RIGHTS OF PURCHASERS, AND THE COURTS 229
The New York Decision of 1884 (In re Jacobs) 230
The Development and Attempted Regulation of
the Sweating System 235
Trade Unions and the Union Label 240
Ethical Loss Through Lack of Legislation 245
APPENDIX I
CANTON COTTON MILLS _vs._ EDWARDS, SUPREME COURT
OF GEORGIA, JUNE 10, 1904 256
APPENDIX II
RITCHIE _vs._ THE PEOPLE, SUPREME COURT OF ILLINOIS,
MARCH 14, 1895 259
APPENDIX III
HOLDEN _vs._ HARDY, SUPREME COURT OF THE UNITED
STATES, FEBRUARY 28, 1898 280
APPENDIX IV
IN RE JACOBS, COURT OF APPEALS OF NEW YORK, JANUARY
20, 1885 306
APPENDIX V
PURE FOOD BILL 325
SOME ETHICAL GAINS
THROUGH LEGISLATION
CHAPTER I
THE RIGHT TO CHILDHOOD
It is no part of the aim of this chapter to prove that the right to
childhood exists. That right follows from the existence of the Republic
and must be guarded in order to guard its life which must perish if it
should ever cease to be replenished by generations of patriots, who
can be secured on no other terms than the full recognition of the need
of long-cherished, carefully nurtured childhood for all the future
citizens.
The purpose of this chapter is simply to indicate certain instances in
which, the right to childhood having been recognized, an ethical gain
has been achieved, and farther gains may be accomplished.
The noblest duty of the Republic is that of self-preservation by so
cherishing all its children that they, in turn, may become enlightened
self-governing citizens. The children of to-day are potentially the
Republic of 1930. As they are cherished and trained, so will it live
or languish a generation hence. The care and nurture of childhood is
thus a vital concern of the nation. For if children perish in infancy
they are obviously lost to the Republic as citizens. If, surviving
infancy, children are permitted to deteriorate into criminals, they are
bad citizens; if they are left illiterate, if they are overworked and
devitalized in body and mind, the Republic suffers the penalty of every
offense against childhood.
An unfailing test of the ethical standards of a community is the
question, “What citizens are being trained here?”
Where young children die by thousands, the ethical standards of the
community are, so far, bad. For science has long shown how to minimize
infant mortality. The failure of a community to follow the teachings
of science in this direction is a moral dereliction of the gravest
character. The death from preventable disease of thousands of young
children in the tenement houses of the city of New York, occurring year
after year, from generation to generation, stamps the ethical standards
of the metropolis as bad beyond belief. For the exposure of infants on
the highways of China is not more obvious to the people of China, than
the preventable mortality of infants in New York City has for years
been obvious to the people of the United States. It is, moreover, one
of the incredible things of our civilization that this excessive infant
mortality, from generation to generation, is left to local boards of
health and to local philanthropies, whose inability to cope with it its
persistence has long conspicuously proved.
The legislation of the last few years, intended to secure improved
housing for the people of New York City, although it is still wholly
inadequate, constitutes one of the fundamental ethical gains of our
generation. For it marks the beginning of that social protection of
infant life without which the right to childhood is illusory; and for
want of which thousands of potential citizens in the great cities have,
within the last half century, been lost to the Republic.
It would seem at first glance to be a universally acknowledged right
of the human being to receive during the first months of life food,
clothing, shelter and nurture without even passive coöperation on
its own part beyond swallowing food, wearing clothing and sleeping
in a quiet, warm, clean place. Yet within one generation it has
been necessary to enforce with fines and imprisonment, statutes and
ordinances for the purpose of stopping large numbers of infants less
than one year old from being used to contribute to the income of their
owners by being exposed in the arms of begging women upon the streets
of the great cities. The colder the night and the later the hour, the
more overwhelming the appeal to the pity of the passer-by and the
greater the pecuniary value to its owner (not by any means always its
mother), of such an instrument for securing income.
Before the enactment of the statute which put an end in New York City
to this misuse of infants, a belief was current that, if the public
should cease to contribute to their support, starvation might be the
alternative for both woman and child. But women and infants do not
starve in New York. The suppression of this exploitation of infants is
a clear gain for the moral sense of the community, not only because
the lives and health of the babies are protected, but because a
perverted and unwholesome outlet for unreasoning pity is cut off, and a
higher form of reasonable care for childhood is substituted therefor.
Following babyhood, the years from the first to the seventh birthday
are so far held sacred to sleep, play and rapid growth that most states
exempt children during this period from compulsory attendance at
school. The belief is generally held, that the strain of school life is
excessive for the health and welfare of so many children at this age as
to make compulsion of doubtful public benefit.
=Young Children working in Tenement Houses.=--Yet, in the spring of
1903, a kindergartner in New York City, on missing from her class an
Italian brother and sister aged four and five years, and visiting
them in their homes, was told by their mother that they could not be
spared from their work to go to the kindergarten. They were engaged
in wrapping colored paper around pieces of wire, to form the stems of
artificial flowers which the family manufactured in their tenement
home, the older sisters making the leaves and petals, and the other
members of the group forming whole flowers and sprays.
The children were pointed out to the attendance agent who explained
that, even under the statute of 1903, the compulsory attendance law
exempted the younger child for three years and the older for two,
assuming that each would then enter school on reaching the seventh
birthday. The factory inspector, when the facts were brought to his
attention, observed that the case did not appear to constitute a
violation of the factory law, since the children were not receiving
wages, and the group at work did not exceed the number authorized under
the license to manufacture artificial flowers in their tenement home.
The question then arose whether such employment constituted cruelty
under the statutes of New York. The danger attending taking the
children and their parents into court upon a charge of cruelty was,
that it might be found that this parental exploitation of young
children within the home did not technically constitute cruelty in the
judicial sense; and such a decision might then be construed by the
colony of artificial flower makers as approval of similar employment
of small children upon a scale even larger than at present. Or, such
employment might be held to constitute cruelty, the children might be
removed from the custody of their parents and sent, perhaps at the cost
of the city, to one of the subsidized sectarian institutions, and a
whole new series of hardships thus caused, not less grave than those
already suffered by the children.
Such exploitation of very young children within the family circle
is practised whenever manufacture in tenements is tolerated. These
children are types of employees in New York, Chicago, Philadelphia, and
all other cities in which tenement dwellings are turned into workshops.
This form of domestic overwork of little children can be eliminated by
the effective prohibition of manufacture in the tenements (a measure
sure to be enacted within a few years in the interest of public health)
and in no other way. Until this prohibition is enacted and enforced,
there will be, wherever the needle-trades and other industries are
carried on in homes, virtually no lowest limit above the age of three
years for the employment of children in families. For children can pull
out basting threads, sew on buttons, paste boxes and labels, strip
tobacco and perform a multitude of simple manipulations as readily as
they can learn the kindergarten occupations.
In Boston, the rigorous enforcement of the licensing-laws applied to
homework has partially restricted this form of exploitation of young
children; and has revealed the interesting fact that the ethical
standard of the people of Massachusetts is higher in two important
respects than that attained by other manufacturing communities. For
the young children are incomparably better protected against domestic
overwork by the partial restriction of manufacture in homes; and the
officials appointed to watch over tenement-house manufacture are the
only ones in the United States who know from ten years of experience
that they are in no danger of being removed from office because of
faithful performance of their arduous and often dangerous work.
=Young Children in Domestic Work.=--Far more difficult to reach by
statute is the oppression of little girls under the burden of household
drudgery at cost of school attendance. The Little Mothers’ Association
registers one of the bitter ironies of child life in New York City.
The girls whose dreary lives it cheers are under the legal age for
working for wages. Many of them attend school just enough to save
their parents from the penalties attaching to keeping a truant in the
family, but so irregularly that progress with the class is impossible
and school life is one long discouragement. For these children, whose
exploitation is largely due to sheer parental shiftlessness and
selfishness, that new provision must in the long run prove a godsend
which now requires a child before beginning to work for wages, to show
that it has completed the curriculum of the first five years of the
public schools and has, within the last preceding school-year, attended
school one hundred and thirty days. This measure places a premium, in
the shape of wage-earning capacity at the fourteenth birthday, upon
steady progress in school and, therefore, upon regular attendance. When
this fact penetrates the minds of the parents, the “little mothers”
will doubtless find less opposition at home to their efforts to escape
from the baby, the washtub, and the scrubbing brush, and to take refuge
in the schoolroom.
The statute thus reënforces parental duty and stays the pressure of
drudgery upon defenseless children within the family. Unfortunately, it
is too slight and indirect. The “little mothers” need direct help and
protection almost as much as the tiny makers of artificial flowers in
the tenements. The next step might well be the adoption of an objective
standard applied to the child herself. If it were required that a girl
must weigh eighty pounds and measure sixty inches in height, the test
to be made with scales and measuring rod in the school, besides being
able to read fluently and write legibly in the English language, before
leaving school, the danger of oppression of little girls within the
family circle would be greatly reduced.
No modern community recognizes the old _patria potestas_, the Roman
right of the father to put his child to death. But in the intimate
circle of family life there lingers deeply rooted the belief in the
right of either parent to exploit childhood for money, or for personal
relief from work by the substitution of the child in the performance of
domestic tasks. And the public conscience is slower to recognize the
need of intervention in this than in any other form of cruelty.
With the statutory prolongation of childhood in the form of child labor
laws, there emerges the need of assuring to the children the practical
benefit due them with their legal immunity from work. In the Republic,
childhood must be sacred to preparation for citizenship. Hence the
public schools offer instruction in the interest of the community. But
for the children here under discussion, mere offering is not enough.
There must be compulsion incarnate in the attendance agent. Through
this official the community enters the home, as it enters the workshop,
the store and the factory, to enforce upon the adult the child’s claim
to this high privilege. There is no longer discussion with the parent
as to the advantage to himself accruing from the education of his
child. The child’s right has been recognized and made a part of the
life of the community.
This process of defending the child, by reason of its future
citizenship, from ignorance imposed by the greed or thoughtlessness of
parents has, since 1903, gone farther in the State of New York than
in any previous year or any other state. For in New York, under the
statute of 1903, a child must not only reach the fourteenth birthday
and the normal stature of a child of that age (so certified by a
special officer of the board of health appointed for the purpose)
before beginning work in manufacture or commerce; it must also have
been instructed in reading, writing, spelling, English grammar and
geography, together with the fundamental operations of arithmetic
including fractions, and _must show_ that it can read fluently and
write legibly in the English language.
An unforeseen and welcome result of this provision is the immediate
discovery on the part of many Italian and Russian immigrant families
that it is no longer profitable to import half-grown and illiterate
young relatives from Europe; since such young importations now require
about two years of steady attendance at school before they can be made
pecuniarily profitable to their importers. Thus one of the ugliest
growths of the padrone system of immigration is quite incidentally cut
off at the root by the statutory protection of children from work while
they remain illiterate.
=Children in Street Occupations.=--Within comparatively few years,
little girls offered violets for sale in the streets of New York
as they still offer in the streets of many cities flowers, pencils,
chewing gum and other small articles. Thoughtless persons encouraged
them with gifts as well as purchases, assuming perhaps starvation as
the alternative to this ruinous employment. Now, happily, the penal
code prohibits under heavy penalty all employment of this kind for
girls under the age of sixteen years. In the interest of morals and
decency, self-support by street-peddling is forbidden to girls six
years longer than newspaper-selling is prohibited to their brothers,
although the recent investigation of the New York Child Labor Committee
justifies the belief that a similar prohibition, on the same grounds,
is no less needed for boys.
Among American cities, Boston, New York and Buffalo are dealing
systematically with very young children working as newsboys. In all
three cities attempts are made to eliminate newsboys under the age of
ten years. Merely to state this would seem to justify the effort and
suggest farther restriction. Yet, in 1903, a representative of the New
York Society for the Prevention of Cruelty to Children appeared before
the Senate committee sitting at Albany, and protested against the
enactment of a measure which proposed to go one useful step farther and
extend the prohibition of street selling to the twelfth birthday.
In many cities, tiny newsboys may be seen on the streets at any hour
of the day or night. Wherever the subject has not been closed by a
prohibitive statute, that perverted reasoning is still widely accepted
which assumes, quite without foundation for the assumption, a widowed
mother or a disabled father for every such diminutive worker, and
unhesitatingly places the burden of the decrepit adult’s maintenance
upon the slender shoulders of the child. Over against the prevalence of
this unfounded assumption, the sweeping prohibition of street work for
children under the age of ten years registers a distinct ethical gain.
It restores the burden of support in early childhood to the parents or
to the community where it properly belongs.
A case arising in New York City under the “newsboy law” illustrates
the point. A child was arrested charged with offering to sell papers
without wearing the badge required by law. He was nine years and six
months old. On the following day several newspapers printed headlines
of which the following is typical: “Tiny Breadwinner arrested for
Selling Papers.” Investigation showed the father to have deserted
his family, the mother to have become insane, and the three children
to have fallen into the direst need. Thanks to the “newsboy law,”
immediate attention was drawn to them, the mother was taken to a
hospital, the children were provided with homes, and the search for the
absent father was begun. Without the law, what would have befallen the
family? And what would be the ethical standard of a community which
allowed the support of a family consisting of an insane woman, a child
younger than himself, and an infant, to devolve upon a boy of nine
years?
For more than one generation, it has been almost invariably assumed
that there must be little newsboys, and that they must be objects
of charity. The two facts, that they are regarded with surprise and
disapproval by European visitors who investigate our educational
theories and practise, and that the street trades uniformly contribute
a wholly undue share to the population of our reformatories and
industrial, truant and parental schools, have been ignored.
There have been newsboys’ homes, lodging-houses, banks, and clubs;
newsboys’ picnics, public dinners, treats and even, from time to time,
a theatrical performance for newsboys. The simple device of prohibiting
the work of tiny children and making the privilege of selling papers
on the streets, out of school hours, depend upon the good behavior and
regular attendance of the candidate at school, registers a marked gain
in reasonable kindness of the communities which have entered upon this
humane course of action.
The boys in New York, Boston and Buffalo, who wear badges, indicating
their right to sell papers, are now school boys authorized by their
parents and the board of education to work, out of school hours, until
ten o’clock at night. Every one of them is vouched for by a parent or
guardian whose name and address is known to the board of education.
There are no waifs or strays among them. They are not legitimate
objects of pity or of charity. They are school boys in good standing.
Just in proportion as the newsboy law is enforced, can a cheerful
answer safely be given concerning them to the question, “What kind of
citizens are being trained here?”
In these three cities, the next step will doubtless be taken in the
direction of raising the age for beginning work to twelve years and
restricting the working day to the hours between seven in the morning
and seven at night. Ten o’clock at night is too late for children under
the age of fourteen years to be at work upon the streets, and the law
of Illinois demonstrates that seven o’clock is a feasible limit for
the work of children under sixteen years in manufacture and commerce.
Surely it is not too narrow a limit for children under fourteen working
in the streets.
=Telegraph and Messenger Boys.=--A similar gain is greatly to be
coveted for the telegraph and messenger boys who share with the
newsboys the life of the streets and who have long been surrounded
by the same sort of glamour in the public mind. Carrying messages,
like selling papers, has seemed to the employing companies and to the
thoughtless public to be “boys’ work,” as distinguished from men’s
work, because boys can do it, and because they can be obtained more
cheaply than men.
The test of the work, however, should be not whether boys can do it,
but what it does to boys. Many occupations are injurious to children
almost in proportion as they seem, from the commercial point of
view, fitted to the abilities of children. To twist colored paper
around pieces of wire in the manufacture of artificial flowers is
within the power of a child of four years. And the labor of such
children can be obtained virtually gratis by the employer under the
system of manufacture in tenement-houses. This portion of the work
seems, therefore, to the employer to be properly “children’s work”
not “women’s work.” But to be kept steadily at work at that simple
manipulation is ruinous for the body and mind of a young child, and,
in the interest of the children viewed as future citizens, is to be
utterly condemned and prohibited. In the same way, a girl of ten years
can carry a baby in her arms, scrub a floor, and wash plain garments
quite clean. But the girl who does nothing, all day long, day after
day, but hold a heavy baby and carry it up and down stairs in a
tenement-house; or who habitually lifts baskets of clothing, or kneels
on a damp floor, gets off easily if she escapes lifelong curvature of
the spine, or serious internal disorder, or tuberculosis, that blight
of the working children.
So the very out-of-door variety and facility of the work of the
messenger contributes to make the work unfit for young lads, almost in
proportion as their youth, spryness and readiness to work for small
wages make them appear to the employing company and the uncritical
observer especially adapted to the occupation.
Granted that one messenger or telegraph boy in a great city may have
risen to a post of responsibility just as one newsboy in a thousand
may have risen to distinction or to fortune, the public mind has
been far too ready to assume the _carrière ouverte aux talents_ for
all these children; and sadly slow to perceive the truth which the
juvenile courts are now revealing, that like the newsboys the messenger
boys have long furnished a large contingent to the population of the
truant-schools, the parental schools, and the reformatories.
Every judge of a juvenile court, at an early stage of his experience
with delinquent boys, becomes impressed with the unfitness of work upon
the streets as messengers and telegraph deliverers, for children. A
judge told the writer that one-third of all the delinquent boys brought
before him had, at one time or another, served the public as messenger
boys. He regarded this as the most injurious, from the point of view
of morals, of all the occupations open to children. Every reformatory
institution which keeps adequate records of the previous history of
the boys committed to its care, can shed a flood of light upon the
demoralization of lads due to this service upon the streets.
The attention of the writer was first drawn to the injurious character
of this occupation for young boys by the experience of a lad who was
taken into service as a messenger in the morning and was sent, at noon,
to the post-office with $170 to buy stamps for a great mail-order
establishment. Intoxicated by the possession of a sum greater than he
had seen in all his life with its meager supplies of money, the boy
showed the notes to another lad upon the street, who suggested that
instead of going to the post-office, the messenger should go to the
races. Together they spent the afternoon betting at the race-tracks.
The following morning the messenger passed from the ranks of the
working children, in which he had been enrolled for one ruinous day, to
those of the juvenile criminals recorded in the county jail.
The temptation involved in handling precious possessions not his own
besets the messenger boy throughout his career. And the contact with
disreputable people is not confined to chance acquaintances upon the
streets, but inheres in the work itself, thousands of messages to such
persons of both sexes being delivered every year by young lads who are
constantly sent, in the way of business, to places of the existence
of which more fortunate children are carefully kept in ignorance. The
judge who presides over a justly famous juvenile court told the writer
that in his opinion two-thirds of the messages delivered after eight
o’clock at night in his city were carried by children to places of bad
character.[1] According to the penal code of New York messenger boys
may be sent to the door of places to which no other child can be sent
without involving the sender in the danger of criminal prosecution.
Surely cynicism can go no farther than this!
All the circumstances attending the work of telegraph and messenger
service render it especially unfit for young, growing boys. The
irregular hours, and the still more irregular meals, picked up in
the intervals of message serving and consisting commonly of bread or
cake with the vilest coffee, contribute to sapped vitality and broken
health. Such meals foster the craving which seems universal among
workers upon the streets, for cigarettes and liquor. The incessant
temptation to overcharge is in turn enhanced by the longing for these
stimulants. The temptation to purloin money and to overcharge makes
thieves of hundreds of children. The ease with which overcharges may
be collected and the relative safety from detection sap the habit
of honesty in nearly all messenger boys. The writer has had wide
experience of working boys and has never known a messenger who did
not, sooner or later, succumb to the temptation to overcharge. How
completely a matter of course it is in the minds of the children, was
shown by a boy who came to the head of a settlement in New York to
ask her, in all simplicity, to help in getting him restored to the
Lower East Side, whence he had been recently transferred to a district
of offices in Broadway, where everyone, even the office boy, knows
the tariff of charges for delivering messages. Among the women of
the foreign colonies he had been able to overcharge at discretion.
After being transferred, these illicit gains were cut off and he felt
himself aggrieved by the reduction of his receipts, and set promptly
and frankly about securing his restoration to the field of his former
dishonesties, which it never occurred to him either to conceal or deny.
It is one of the ironies of our treatment of our future citizens that
all the disadvantages of the messenger service are intensified at the
Christmas holiday season. Work is brisker, inexperienced children are
taken on, bundles are larger and heavier and correspondingly more
wearisome to carry than at other times. Or they may be smaller, more
precious and, therefore, more tempting to purloin. Waiting at the doors
of dwellings is trying in the cold of Christmas days; servants are
apt to be slow because of the unusual demands upon them; the contrast
between the comfort, perhaps the splendor, of the interiors seen by
glimpses and the meager surroundings and celebration at home--all these
things make the Christmas experiences of the messenger boys bitter
rather than cheering. On the other hand, people in general are inclined
to be more confiding than usual; overcharging is easier, the fear of
detection is even remoter than at other seasons.
All the foregoing disadvantages attach to the night service with
even greater force than to the work by day. After 7 P. M. the work
of the messenger service and telegraph delivery is peculiarly unfit
for children and should be performed by men, never by minors; least
of all by boys between the ages of ten and sixteen years. Yet it is
these young lads who constitute the rank and file of the service at
the present time; many of them only nominally fourteen years old while
really much younger.
One evening, as the writer was leaving home to go to the railway
station to take a midnight train, a boy eleven years of age brought
a telegram for a member of the family announcing the successful
performance of a surgical operation upon a relative in a distant city.
As the boy’s route to the office involved passing the station, the
writer suggested walking together. In the course of the conversation
the boy said: “She didn’t take on at all about her message, that woman
didn’t. The last message I carried was to a laundry and the girl was
the cashier. When she seen her message she fell clean off the stool on
the floor in a fit. Her mother was dead and no previous notice.” He
referred to himself as one of the “death-message squad” and explained
that between 11 P. M. and 5 A. M. the messages sent out from the office
in which he was employed were chiefly “death-messages” and “come
immediatelies.” On reaching the station, just before midnight, this
child of eleven years said good-night and continued his walk across the
Chicago River to one of the worst and most notorious regions of the
Levee in which the office was conveniently located.
The stirring opportunities afforded by the life of the streets for
boys at the age of the keenest thirst for adventure, together with
the absence of personal oversight, conspire to lure the messengers to
commit minor offenses. All these considerations taken together have
effectually convinced students of the child-labor problem that the
messenger and telegraph delivery service rank among the boy destroying
occupations. Yet one telegraph company in the United States is probably
the largest single employer of boys in the world, having had on its
pay-roll in New York City alone, in 1902, 6,000 boys in order to keep
its daily working force at 2,000 boys.
Let us assume that, in spite of all its disadvantages, some rare boy
survived a long term of employment in the telegraph and messenger
service and emerged with digestion unhurt by irregular meals and coffee
drinking; nerves sound in spite of lost sleep and cigarette-smoking;
character untainted by evil companionship and the overwhelming
temptation to dishonesty. What has such a boy to show for the years he
has spent in delivering messages? He has no trade, no craft, no skill
of any kind, no discipline of mind or body to fit him for rising in
any direction. The irregularity of his work has unfitted him for any
sustained effort when he has passed the age for accepting children’s
wages. One of the problems of the settlements is to find work for
boys who have outgrown the messenger’s uniform. The lads have learned
nothing which is of any value to them. There is no versatility in them
which might make them desirable employees in the hobble-de-hoy age.
Their eagerness to make a record of speed and promptness has all oozed
away. They are no longer dazzled at the prospect of earning $4.00 a
week. They know most exactly the purchasing power of the wages they are
likely to receive, and balancing the fatigue and exertion against the
pay, they simply sit still and wait for something to turn up, rather
better pleased if nothing can be found for them to do. Not every boy
is morally ruined by this work; but the earlier he enters upon it, and
the longer he remains in it, the greater the probability of his ruin.
Every consideration adverse to the employment of boys as messengers
holds with added weight against the employment of girls. On grounds of
health the exposure to all sorts of weather is even worse for girls
than for boys. Carrying heavy packages is most injurious for girls, and
this is one of the purposes for which messengers are frequently called.
Exposure to contact with all sorts of people is, if possible, worse for
girls than for boys, and most undesirable for both. From the point of
view of health and morals the employment of boys is sufficiently bad;
and in the opinion of those who are best qualified to judge, should be
discouraged in favor of the employment of men.
It is reported that President Eliot once notified the Harvard Square
office of the Western Union Telegraph Company that the rule of the
college must be observed which forbids women without escort to visit
the dormitories. The occasion of this notice was the experiment which
this company had been making in several places, Cambridge among the
number, with employing girls instead of boys as messengers. As most
of the business of the Harvard Square office is done with students,
the experiment at that point was immediately abandoned. Everywhere,
the consumer can do what President Eliot is reported to have done,
namely, make the conditions upon which the companies can retain the
patronage and custom essential to their business. To do this, however,
the customers must act in large numbers. It is because President Eliot
speaks for hundreds of patrons that his decision is final for the
company. It rests with the friends of the children to urge upon the
general public the feasibility of selecting the kind of messengers to
be employed. Certain business offices in New York City are already
doing this. They have notified the local messenger service that small
boys will not be accepted, messages and packages will not be entrusted
to them. To these customers, the companies send only large boys. In the
same way, persons who telephone calls for messengers, can, by taking
thought, stipulate for a large boy. It is particularly important to do
this at night.
When a sufficient number of persons register public opinion in this
and other practical ways, the tiny messenger boys will disappear from
the streets of the cities as the infants misused for begging purposes,
the shivering little girls offering violets for sale, and the baby
newsboys, have vanished from the streets of New York City. Legislation
was required to banish each one of these groups of little victims of
the streets, and before legislation could be enacted, and enforced,
public opinion had to be educated. The future citizen most in need
of vigorous enforcement of existing statutes and of strenuous public
and private protest against his present way of life, is the little
messenger boy. On no one does the denial of the right to childhood act
more cruelly than upon him.
Hitherto, only initial steps have been taken in the direction of
legislation. Ohio prohibits the employment of boys under sixteen years
of age, and of girls under eighteen, after 7 P. M. But the law is not,
in general, well enforced, and the writer has seen young boys and has
heard upon trustworthy authority of young girls being employed, in that
state, late at night. Illinois prohibits the employment of boys and
girls alike after the hour of 7 P. M. In New York State the enforcement
of the law for the protection of the messenger and telegraph boys is,
unfortunately, left to the local boards of health, and the statute is,
therefore, largely nugatory.
With the effort to secure better statutory protection of the children,
there should be a general movement for the employment of men in these
capacities. Why should telegrams, messages and packages be entrusted
to persons of less efficiency than the letter carriers employed by
the government of the United States? Letters are usually less urgent
than telegrams, less valuable than packages. Why, then, should the
public consent to be worse served in the delivery of telegrams,
messages and packages than of letters? Even in the delivery of letters,
children are sometimes employed by the United States post-offices,
indirectly through contracts with the messenger companies, which send
out pitifully small boys at all hours of the night to carry letters
bearing special delivery stamps. It is a perverse practise which here
also entrusts the especially urgent letter to a bearer of less than
the ordinary trustworthiness, a practise against which the liveliest
protest might well be made wherever it occurs.
Wherever there is a one-armed man out of employment who possesses the
other qualifications for the messenger service now ordinarily offered
by children, the advantage to the community derivable from giving the
opportunity for a livelihood to such an unfortunate is so obvious that
it would doubtless be admitted by everyone. The need here, however,
goes much farther than this, embracing the employment of sound men
as well as of one-armed men, in the interest incidentally of the
efficient service of the community, but primarily in the interest of
the children, the future citizens whom the Republic cannot permit to
be sacrificed in the performance of tasks intrinsically unfit for
childhood.
=Children in Retail Trade.=--Boys who enter upon employment in retail
trade at the age of fourteen years, are at the foot of the ladder of
commerce upon which some of them will rise to competence and success.
In New York such boys must have attended school one hundred and
thirty days during the last preceding school year, must have received
instruction in reading, writing, spelling, geography and English
grammar. They must be familiar with the fundamental operations of
arithmetic, including fractions. They must not only prove themselves
fourteen years of age by producing a birth or baptismal certificate,
but must be of the normal development of children of that age and in
good health, in the opinion of the examiner of the board of health,
who issues the certificates without which they cannot be legally
employed. Their working day is limited to nine hours and must be
arranged to end not later than ten o’clock at night. Boys who meet
these requirements but have not yet completed the work of the first
eight grades of the public school, must attend night-school six hours
a week during sixteen weeks each year until the sixteenth birthday,
unless the curriculum is meanwhile completed.
This is believed to be the most enlightened statute yet enacted for the
protection of boys entering upon employment in commerce; and so far as
the issuance of certificates is concerned, it has been administered
conscientiously and effectively. During the months of October and
November, 1903, approximately 2,000 children who applied to the board
of health of New York City for certificates were refused them, either
because they could not prove that they were fourteen years of age, or
because they did not meet the educational requirements. Unfortunately,
there is as yet no appropriation made by the city for the salaries of
mercantile inspectors to enforce the law by following the children into
the stores frequently and regularly. Since, however, the names and
addresses of the children, with the statement whether or not papers
have been issued, are forwarded by the board of health to the school
officials, the lack of mercantile inspectors is in part compensated for
by the search made by the school authorities for children thus shown to
be out of school.
It is probable that there is a close connection between the unusually
high wages paid to children in retail trade in New York and the
restrictions upon their work, both being in excess of the wages and
restrictions common elsewhere. Children of the grade of intelligence
here described are worth better pay than younger, more ignorant
children; and when they meet all the requirements of the law and have
their papers in order, they are at a certain slight premium compared
with children of the same age in communities where the workers are left
subject to the unrestricted competition of younger children.
On the other hand, such restrictive legislation tends to stimulate the
use of systems of mechanical cash-carrying; for the higher wages of
the protected children are worth saving. This is clear gain for the
merchant, the children and the community; for the work of cash-children
is the least desirable of all the phases of retail trade. The act of
carrying cash is in itself a gross temptation, sharply accented by
the suddenness of the child’s transition from the meager possessions
of the tenement-house family life to the bewildering richness of a
great store. The amounts pilfered by children are usually so trivial
that it is rarely thought worth while for the employer to prosecute
the offender. A child who has been guilty of petty thieving is usually
dismissed and replaced by another. But in the life of the tenements
and the stores nothing is hidden; and on the following day all his
associates know what has happened and the brand of the thief is upon
the offender. Every reduction in the number of children required for
the performance of this work is, therefore, a gain for the morals of
the working children.
The best measures yet enacted for the protection of girls in retail
trade are wholly inadequate. The law above described as applying
to boys in New York applies to girls also, except that girls are
not required to attend night school. But this is not enough. In the
interest of the public health and morals there is quite as good ground
for prohibiting the employment of girls under the age of sixteen years
in retail trade as in peddling in the streets. Girls cannot be kept in
the close air of stores eight or more hours a day, without suffering a
loss of that vitality which it is one of their most important functions
during the years between ten and sixteen to store up for the uses of
motherhood later on. The disadvantages arising from confinement in
close air increase in proportion as growing girls are kept standing, or
are subjected to crowding and excitement.
Girls are, of course, subjected to exactly the same temptations to
pilfering as boys. Moreover, they are more at the mercy of the men
under whose direction they work. An immoral floorwalker or head of a
department possesses appalling power for evil over the lives of the
girls who are subject to his direction. The public at large enjoys
the freedom of every city store; and the position of little girls
offering violets to all passers on the streets, is essentially not very
different from that of the young employees in retail trade. There is
also enforced association with older employees who may or may not be of
good character, and the readiness of girls at the most impressionable
age to adopt the tone of the more striking among their older
associates. Finally, there is for young girls none of the steadying
influence that arises for boys out of the prospect of moving upward in
the line of promotion. For girls the work which they perform before the
sixteenth birthday is usually a makeshift for the sake of the immediate
weekly wage which they earn at quite as great risk to their future as
the messenger boys. On behalf of the girls under the age of sixteen
years employed in retail trade only the most adverse reply can be given
to the question, “What kind of citizens are being trained here?”
Meanwhile, pending the enactment of a measure which shall place retail
trade in the same category as street peddling for girls under the age
of sixteen years, the shortening of the hours of work by the statutes
of 1903 in New York and Illinois marks a substantial gain.
So far as they are enforced, they will make an end of such spectacular
cruelty as the writer witnessed, in December, 1902, a few weeks before
their enactment. Returning late at night from the long rehearsal of the
Musical Arts Society, at Carnegie Hall, some ten days before Christmas,
and forced to wait for a car at Broadway and Grand street, she found
there at eleven o’clock a dozen little girls, between ten and fourteen
years of age. They proved to be neighbors and eagerly poured forth
the story of their day. They had reported for work at 7:30 in the
morning, the stores opening at eight o’clock. They had had scant time
for luncheon, and worked again until supper time. Then, in one store
they were given ten cents each and in another store a meal ticket.
Several meal tickets proved worthless because there was nothing left
to eat at the late hour at which the children were allowed to stop
working. After supper, all had worked again until ten o’clock when
they had been sent home. After waiting half an hour for a car, it was
proposed to walk home together; but one little girl sat down on the
curb stone, crying and saying that she could not walk, if she never
reached home. The others stayed with her in the cold of December with
midnight approaching, little victims of the cruelty that, year after
year, travesties the Christmas season.
A boy well known to the writer described as follows his experience of
the shortened working-hours: “I fill a bin with packages, ready for the
driver to put on his wagon. I begin at seven and work all day. A wagon
goes out at eight in the evening. Then I fill my bin for the driver to
put in his wagon, ready for the morning, the first trip. I stay by the
bin until ten, waiting for the last parcels bought just before closing
time to come down to me. When the store closes at six, the last of
these come down by ten. Then I can go home. When the store used to be
open until eight I went home at midnight. When it was open until ten, I
went home at two in the morning. But when I am ready to go home, the
little gatherers come around, gathering up paper, string, broken toys,
and all the rubbish that accumulates on the floor in the holiday rush.
When the gatherers have finished, the scrubbers come along and clean
the floors, and the gatherers generally go home about the same time as
the scrubbers, two hours later than I go home.”
Henceforth, no child under the age of sixteen years can be legally
employed after ten o’clock at night in New York or after seven o’clock
in Chicago. The change for the children employed in the retail stores
in Chicago, to be derived from this new statute, is illustrated by
another winter-night observation of the writer made some years ago when
returning from the Auditorium after the usual Christmas rendering of
the Messiah. The oratorio had been long, there had been delays, and
it was nearly eleven o’clock when the cars turned the corner at Adams
street to go west and then southward. There were the usual grip-car and
two trailers of the cable-train then used on the streets of Chicago.
All were quite empty when they stopped. When they started again,
all were crowded with children and half-grown girls from the great
department stores. Many of the children could not get inside the cars,
but stood huddled on the platforms and the grip-car, exposed to the
falling snow after their long day in the overheated air of the stores.
Some of the little girls fell asleep, others clung to straps, laughing
or crying hysterically. All had gone to work in the early morning; all
expected to return to work--some at seven o’clock the next morning,
others at eight.
The writer and her companion were the only adult passengers, and when
they left the car the weary children continued their journey with only
the gripman and conductor. Some of them would go to the end of the
car-route, and then stumble wearily through deep snow in the winter
midnight far across the prairie to their homes.
=Children in Manufacture.=--The presence of children in mills began
with the division of labor, and the development of machinery driven by
steam. It was a feature of the civilization of the nineteenth century,
but reached no large dimensions in the United States before 1870. Since
then it has increased and continues to increase wherever no counter
order is given by restraining laws rendered effective by alert and
organized public opinion.
It has been shown that the end of childhood and the beginning of toil
is an undetermined epoch. Even where, as in New York and Illinois,
manufacture and commerce are closed to children under the age of
fourteen years, street-life, tenement-work and the drudgery of the
“little-mothers” may occupy the earlier years. In less enlightened
states, manufacture and commerce are open to children at an earlier
age, until in Georgia[2] there is no statutory protection.
As to the age at which children may begin to work in manufacture, the
evolution of the public conscience may be observed at every stage,
from the utter absence, as in Georgia, of all statutory care even
for children aged five, six and seven years, to the highest point yet
achieved of carefully cherished childhood under the statutes of New
York and Illinois.
In 1903, the legislature of Georgia met twice and at each session
refused after long deliberation to enact a statute restricting the
employment of children in cotton mills. There is, therefore, no limit
below which children may not be employed if manufacturers can make
use of them. The writer has seen children at work in a Georgia mill
who were pitifully stunted if they were eight years old. There is,
in Georgia, no restriction upon the hours of work, and usage calls
for eleven hours in twenty-four. It was, therefore, due merely to the
good will of their employer, that these little boys and girls were not
required to form part of a shift of workers at night. Georgia, by these
repeated votes of her legislature in 1903, has taken a stand ethically
lower than that of England in 1802, when Sir Robert Peel’s act was
adopted; although industrially Georgia is one of the most modern of
states if tested by the purely material standard of the equipment of
her mills.
The same Georgia legislature of 1903 which refused to prohibit the work
of children less than ten years of age, enacted a law declaring any man
a misdemeanant who permits his young children to work in a mill while
refusing work which may be offered him. Cases arising under this law,
however, seem already to have demonstrated its futility as a measure
for the protection of the children. For the fathers arraigned under it
found no difficulty in proving that they occasionally did some casual
work, enough to exempt them from all penalties.
Thus Georgia ranks with Oklahoma in placing no restriction upon the
exploitation of children. Oklahoma, however, has no manufacture and
little commerce; while the cotton mills of Georgia are doubling their
spindles with bewildering rapidity, and new villages grow up along the
line of the Southern Railway almost between spring and autumn.
South Carolina has adopted a curious compromise according to which
children under the age of eleven years were not to be employed after
May 1st, 1904, and children under the age of twelve years not after May
1st, 1905. There are such exemptions in favor of widows, whose children
may work on reaching the tenth birthday, as may reasonably be expected
to induce many wives of worthless husbands to pose as widows among the
shifting populations of the mill-villages.
Alabama prohibits the employment of children in cotton mills before the
twelfth birthday (always with the exception of orphans and the children
of widows) and restricts work at night expressly to those children who
have reached the age of thirteen years. Between the thirteenth and
sixteenth birthdays both boys and girls may legally work eight hours at
night.
Similar laws, but without the restriction upon night work, are in force
in North Carolina, Virginia, West Virginia and Missouri. Louisiana
prohibits the employment of girls in mills before the fourteenth
birthday, but permits boys to work at the age of twelve years. Texas
prohibits the employment of illiterate children under the age of
fourteen years; those who can read and write may work at twelve, both
boys and girls.
The practical value of all these laws to the children and to the
community is slight because there are neither inspectors to enforce
them, nor schools to receive the children if they were effectively
banished from the mills. The chief worth of the statutes is that they
register the growing conviction of the community that children must
receive some modicum of protection.
For the children they are not wholly valueless, because when a measure
for the safeguarding of childhood is enacted, certain employers obey it
simply because it is there, irrespective of penalties and inspectors.
Less scrupulous employers also obey it in many cases because they are
advised by counsel that they will be liable to the child’s family in
heavier damages in case of accident to a child employed illegally,
such employment constituting in itself negligence on the part of the
employer, while a child under the legal age for employment may be held
by a court to be incapable of contributory negligence. In still other
cases, accident insurance companies decline to insure children employed
in violation of the law. Hence a body of usage begins to form as soon
as a child labor law is enacted; and in the long run, only the ignorant
and the viciously contumacious have to be brought to obedience by the
prosecuting and enforcing authorities.
From this point of view these recent statutes of Alabama, North and
South Carolina, Texas and Virginia are to be regarded as cheering
ethical gains; for they mark a change in the public conscience with
regard to the sacredness of childhood and promise a continuous process
of education of parents and employers such as has taken place in
several Northern states during the past thirty years and is still going
forward.
History repeats itself in the exemptions embraced in the new Southern
laws. It was as recently as 1903 that New Jersey and Wisconsin repealed
provisions authorizing the employment of orphan or indigent children
earlier than other children. Wisconsin had formerly placed the
invidious task of granting permission for such children to work upon
the county judge, and New Jersey upon the factory inspector. Judges are
but indifferent investigators of indigence, and rely in these cases
upon the opinion of the factory inspector, who is thus distracted from
his legitimate duty of inspecting factories to inspect family relations
and poverty. In Kentucky this evil provision still exists, but public
opinion is so thoroughly aroused in favor of abolishing it, that repeal
in the near future seems inevitable. Under the exemptions embraced
in the new Southern child labor laws, the tendency for every child
deserted by its father, and for every illegitimate child who would be
a cost to the community, to be accounted an orphan and, therefore,
liable to exploitation in a cotton mill, may reasonably be expected to
manifest itself.
At the opposite end of the scale of morals and enlightenment from the
action of Georgia, is the recent history of legislation in Illinois,
which exhibits an interestingly rapid gain in recognition of the claim
of childhood to immunity from responsibility of an industrial and
financial nature. Before 1885, the industrial demand for the labor of
children existed in that state only to a limited degree. Children were
available for the street trades, the retail stores, offices, etc., but
manufacture was of a character offering little opportunity for the use
of children’s labor. Textile industries were almost unknown and only
the glass-bottle trade found boys indispensable. In 1894, the first
full year in which the inspections were made under the state factory
law of 1893, there were found at work in the factories and workshops,
8,130 children under the age of sixteen years. In 1895, the number rose
to 8,624. In 1897, the statute was extended to embrace children engaged
in commerce, and the factory inspector’s report for 1902 showed more
than nineteen thousand children at work under the age of sixteen years,
in manufacture and commerce alone, not including the children in mines
and the streets of the cities.
The first child labor law of Illinois prohibited the employment of
children under the age of fourteen years in mines. This was enacted
in response to the efforts of the miners’ unions. It provided for no
exemptions. This effort of the miners has achieved a substantial gain
for the ethical activity and perception of the people of Illinois.
No one would now venture to argue in favor of employing young boys
under ground in that state, while boys of twelve years may still
legally work in the coal mines of Kansas, and in all mines in Iowa,
Missouri and North Carolina. In 1890, an ordinance of the City of
Chicago prohibited the employment in manufacture or commerce of any
child under the age of ten years “unless there be dependent upon such
child any sick or infirm parent or adult relative.” The legislature of
1891 prohibited the employment anywhere in the state of a child under
thirteen years of age with the same startling proviso. In 1893, all
employment of children under the age of fourteen years was prohibited
in manufacture but permitted as before in commerce. In 1897, the
minimum age for employment in commerce was raised to fourteen years and
thus made uniform with the minimum already established for mining and
manufacture. All exemptions were abolished. Tested by experience the
administrative part of the statute proved weak and again comprehensive
amendments were adopted in 1903. As the law now stands, a child under
the age of sixteen years may not work after seven P. M. nor longer
than eight hours in one day and forty-eight hours in one week. Nor may
a child under the age of fourteen years be employed or permitted or
suffered to work in mining, manufacture or commerce. These provisions
are unspoiled by any exemptions whatever. Moreover, a child under the
age of fourteen years must attend whatever school he is in throughout
the full term, comprising a fixed minimum of 110 days in the school
year.
Illinois has thus faced, more boldly than any other American state,
the fact that children to the age of sixteen years are different from
adults and must be differently treated in industry. The new laws
throw upon the community the burden of maintaining all those sick and
disabled parents and dependent adult relatives whom, as late as 1890,
the state entrusted to the precarious efforts of the children ten years
old or less.
A significant measurement was immediately made of the resultant burden
to the community. Miss Jane Addams, of Hull-House, asked the Chief
Inspector of Factories to report to her the names and addresses of all
children under fourteen years of age who had been employed under the
more lax old law and were now deprived of employment by the enforcement
of the more rigid new law, and whose mothers were widows. This was
done. In the period between July 1st, when the law took effect, and
October 26th, fourteen cases in Cook County, which embraces Chicago,
and six cases in the rest of the state, had been found in which
this form of hardship appeared to occur. The twenty families were
investigated with the utmost care, in coöperation with the Bureau
of Charities of Chicago. In the end, three families in Cook County
and five in the remainder of the state proved to be in need of the
equivalent of the wages which a fatherless child less than fourteen
years of age had been earning. The task remained of raising money to
be used as scholarships for these children until they should reach
the fourteenth birthday. The wages earned by the children were from
two to four dollars a week; and they ranged in age from twelve years
and six months to thirteen and a half years. The period for which
the scholarship was needed varied, therefore, from six to eighteen
months; and the total amount for each child varied between $104 and
$200 distributed over a period of eighteen months. The necessary money
was secured in coöperation with the Illinois Federation of Women’s
Clubs, and the payments are made weekly on Saturday, on presentation of
the written statement of the principal of the public school that the
child’s attendance has been regular and satisfactory. This adequate
volunteer aid, supplied by a few persons, shows once for all how slight
is the basis for the widely expressed fear lest hardship be inflicted
far and wide, by prolonging the period of childhood to the fourteenth
birthday.
The results of this Illinois experiment in furnishing scholarships
for children who had worked under the age of fourteen years and were
deprived of wage-earning by the operation of the more stringent new law
clearly demonstrate that children have not, to any considerable degree,
been contributing to the support of their families. It is impossible
that they should do so. The community must inevitably support in some
way, well or ill, all its dependent members. But in the cruel belief
that this burden could be placed upon the young children, thousands of
them have, during the past thirty years, been deprived of the rights
and privileges of childhood.
The state which accepts the plea of poverty and permits the children
of the poorest citizens to labor prematurely, accepts the heritage of
new poverty flowing from two sources; namely, on the one hand, the
relaxed efforts of fathers of families to provide for them, and on the
other hand the corruption of weak children by inappropriate occupations
which involve temptation beyond the child’s power of resistance, and
the exhaustion of strong children by overwork. It is exactly the most
conscientious and promising children who are worked into the grave or
into nervous prostration, or into that saddest state of all, the moral
fatigue which enables a man to sit idly about for years while his wife
or his sister, or his children support him.
Hence it appears that there is need of shifting the accent of the
current method of caring for dependent widows and children by public
and private philanthropy. If the orphan child, by virtue of his future
citizenship, has a claim to sustenance, education, freedom from
exploitation (his labor being contraband), and a corresponding duty
to go regularly to school, then there should be systematic harmonious
provision for this. Such a child should not be left to the precarious
provision of sporadic private charity. Why should such children not
receive scholarships dependent upon regular attendance and good
behavior, and provided out of the school-funds?
=The Glass-Bottle Industry.=--The urgent need for the present stringent
law of Illinois can, perhaps, best be made clear by a somewhat detailed
description of the children in one trade as it was found to exist ten
years ago.
When the first factory law of Illinois was enacted, in 1893, it
prohibited the employment of children under the age of fourteen years
in factories and workshops. For children employed in the glass-bottle
works, this provision, until the present year, when the new law made
this method more difficult, was successfully evaded by dissolute
men and women who gathered in orphan and deserted children from the
poorhouses of five counties adjacent to that in which stands the city
of Alton, and from the orphan asylums in St. Louis, and made affidavits
as “guardians” of the children that the lads were fourteen years of
age when they were really from seven to ten. The “guardians” then
proceeded to live upon the earnings of the children which were, in
1893, forty cents a day for small boys and sixty cents for larger ones.
One “guardian” controlled the wages of several boys. In some cases the
“guardians” and their wards lived in shanty-boats along the Mississippi
river, drawing their floating habitations well up into the mud of the
river bank for the winter, and floating away for the summer, when the
glassworks closed. During this enforced holiday the “guardians” and the
children lived precariously by fishing and berry-picking, the children
profiting by the fact that the glass-blowers could not endure the heat
of the ovens during July and August.
The earnings of the glass-bottle blowers depend somewhat upon the
speed of the boys who fetch and carry for them. These lads are,
therefore, kept trotting at the highest speed which a child can
maintain for several hours. In making inspections of the glass-bottle
works, the writer found it impossible to get from a boy a consecutive
statement as to his name, address or parentage. A boy would say, “My
name is Jimmie;” and then trot to the cooling oven with his load of
bottles and returning say, in answer to a fresh question, “I live in
a shanty-boat;” then trot to the moulder for another set of bottles
and returning say, “I’m going to be eight next summer,” and so on.
Among twenty-four lads questioned during one night-inspection, not one
ventured to pause long enough to put together two of the foregoing
statements. And the eye of the boy interrupted in his work was always
fastened anxiously upon the blower for whom he was working. The blower
did not pay the boy, who was carried on the payrolls of the company;
but when a boy was detained for the purpose of questioning, a shrill
whistle sounded and the boy would say to the inspector, “Don’t you hear
him doggin’ me?”
The load of bottles which a boy carries at any one time is not heavy
and there is no lifting to be done. Hence such work is commonly
described by employers as “light and easy.” But the circumstances
attending the work, the surroundings amid which it is done, fill the
words with grim sarcasm. The sustained speed required of the children
and the heated atmosphere render continuous trotting most exhausting.
An hour’s steady trotting in pure air tires a healthy schoolboy, of
seven to fourteen years; but these little lads trotted hour after hour,
day after day, month after month, in the heat and dust.
There was no restriction upon night work. Any boy who was eligible for
work at all, was used indifferently by night or by day; and pitifully
little children were found at work at two o’clock in the morning. Often
a sleepy child, stumbling among fragments of white-hot glass, received
serious burns; and bandages were more common than among any workers
that the writer has seen in the course of many hundreds of inspections.
Indeed, loss of time while recovering from burns received during their
work constituted one of the grievances of the “blowers’ dogs,” of whom
several were found in their homes convalescent from burns and other
illnesses incident to their occupation. Mothers complained bitterly,
too, of the loss of coats and shoes by burning when the boys collided
with each other in the course of their work, the burden of each being
glass heated just below the melting-point.
At the close of the day’s work or the night’s work, the children went
from the heat and glare of the glass-ovens into the cold and dark of
the morning or evening. They went, with the men with whom they worked,
to the nearest saloons to buy the cheap drinks which were freely sold
just across the street from the works. All the boys used tobacco,
usually chewing it, those of seven and eight years of age doing exactly
what the men did by whose side they spent their working hours. As
seen and heard at their work, and at the closing hour, when they left
the works, these children were stunted, illiterate, profane, obscene,
ruined in body and mind before they entered upon the long adolescence
known to happier children.
The sharp contrast between the heat of the glass-ovens and the frost of
the winter mornings, produces in the children, wearied by hard work,
rheumatism and affections of the throat and lungs, from which many
of them die before reaching the age of apprenticeship. Of those who
survive, virtually none succeed in attaining the position and wages of
a skilled glass-blower. Their health would be inadequate to the strain,
even if the career were open to them. But it is not open; for an old
rule of the union limits closely the number of apprentices to each
hundred glass-blowers and fixes the age of apprenticeship at seventeen
years. The coveted privilege of apprenticeship is commonly reserved by
the blowers for their own sons, whom they do not employ as “dogs” but
keep to the age of seventeen years, either attending school or working
in some less destructive occupation than glass-bottle making.
When in 1893 the first efforts were made to enforce the child labor law
in the glassworks at Alton, the employers and the press foretold dire
sufferings for the widows dependent upon their children’s earnings.
The writer, as responsible head of the factory inspectors, by request
of the governor of Illinois, made an investigation of the general
conditions of life of the children and their families, aside from the
work which they did in the glass-ovens.
It soon became clear that the opening for the employment of young
children served continuously to attract to Alton a most undesirable
population from many places in Illinois and neighboring states. Thus
the first three alleged widows who were visited, had all come from
other places for the express purpose of living upon the earnings of
their wretched, illiterate sons, supplemented by the gifts of the
charitable. One was found living in a tent with three children, the
two younger ones being regularly neglected while the mother and the
older boy worked in the bottle works. Another “widow” did washing,
which was insufficient for the maintenance of herself and three
children. Her husband had been sent two years before to an asylum, an
incurable patient. A trifling, continuous addition to her earnings
would have enabled her to keep her boy in school; but the charitable
people of Alton contributed to the partial support of her family while
the glass-works exploited her boy at wages below the point of present
subsistence, and with no acquisition of skill such as might make him
self-supporting in later years. If the boy had not worked, though
of school age and illiterate, the mother feared that the charitable
gifts might be wholly cut off. There appeared to be good reason for
her fear, as the mayor of the city stated to the writer that he had,
himself, sent to the glassworks in search of work, a widow and her
little boy under the legal age for working, when the mother appealed
to him for help. The third of the “widows” was blind, and her husband,
blind also, was in an asylum. She lived in a shanty-boat with her
four little children. Of her two boys aged seven and nine years who
worked at the glassworks, one was blind in one eye. When the husband
was sent to an asylum, the family was placed in its boat by the county
authorities and told not to return. They accordingly floated down from
a point above Plymouth to Alton where, although the two little boys
immediately found work, the mother promptly applied for relief which
was refused on the ground that “her able-bodied sons” should support
her. In the family of a laborer who was working for eighty cents a day,
the consumptive wife and baby were found shivering over a drift-wood
fire in a dilapidated boat, while two boys aged eight and ten years
worked at the glassworks. The family had floated down the river in the
autumn for the sake of sending the children into the glassworks. A
worn-out and dissolute glass-blower who had a pension of eight dollars
a month and five children under the age of fourteen years, had recently
married a widow with six children under fifteen years. Father, mother
and the eleven children were living in a tent between the river and
the works, where several of the children were employed, some by night
and some by day, so that the beds in the tent were used by different
children, one set rising to go to work when the others returned to
sleep.
All these families--and they are merely a few examples of a large
population which they typify--had been sent or brought to Alton in
order to meet the demand of the glassworks for cheap child labor.
They were a permanent charge upon the charitable people of the city.
In no single case did the earnings of the little boys really support
the family and relieve the community even immediately and temporarily
of that burden. There was child labor and charitable help, and in
most cases, chronic pauperism besides, with every prospect that the
overworked, ill-brought up boys would themselves be speedily added to
the ranks of the tramps or the invalids.
Under the recent rigorous prohibition of the employment of children
under the age of sixteen years after 7 P. M., the possibility of
exploiting such young children as were found at work in 1893 is much
reduced. Under the provision which requires the oath of the parent
to be corroborated by the signed statement of a responsible person
in a recognized school, that the child is fourteen years of age,
has attended school and can read fluently and write legibly, such
exploitation must be still farther reduced.
What then, is it reasonable to expect in the immediate future for
such dependent families as those above described? Certainly Alton can
no longer serve as so powerful a magnet drawing them to itself. The
local authorities of the various cities and counties can no longer
ship to Alton all those dependent families which happen to include a
young boy under the age of fourteen years. The artificial aggregation
of pauperism in one place may be expected to diminish. A number of
scattered communities will each have its own few dependent families
of this class to sustain until the children attain the qualifications
of age and education which the state stipulates. That these families
can be induced to keep their children in school by means of a very
modest scholarship for each child, has been conclusively shown by the
experiment recently conducted in Chicago.
For many years, the opportunity for exploiting young children in Alton
tended to collect there a disproportionately large body of dependent
families. Then the presence and number of these families served as
an argument for the necessity of continuing to exploit the children.
The artificially accumulated mass of poverty perverted the minds of
many otherwise kindly persons who failed to see that a pauper family
is no less a pauper family because it is using up and wearing out by
premature labor a young child who, if cherished and trained for a few
years, would subsequently be able to support his family and redeem it
from pauperism.
It is no small ethical gain to clear up the confusion of mind which led
persons of all sorts to explain that the children who worked at the
glassworks were so intrinsically and inevitably bad that nothing could
be done with them in the way of education or of reform. The use of
stimulants by young boys, which inevitably followed overwork and evil
example, was very generally attributed to the hopelessly bad native
character of the unhappy children; as were the foul language, filthy
personal habits and propensity to gambling common to old and young
employees. Every citizen of Alton who talked with the writer about the
boys working at the glassworks, dwelt upon the bad character of the
children, calling them “tough” or “dissolute” according to the habit
of speech of the person. The suggestion of abolishing the work of such
children, dispersing the army of little offenders, distributing them
through the schools with which many of them were totally unacquainted,
making schoolboys of the whole body of children of compulsory school
age--the line of action taken by Boston, New York and Buffalo with
regard to the dissolute young newsboys upon their streets--this simple
recognition of the right of childhood to school-life and immunity from
toil, never found expression on the part of one person with whom the
writer came in contact in a long and active study of that prosperous
city. The mayor actively promoted the employment of children under the
legal age for work. An important officer of the board of education was
a member of the glass manufacturing company, and was of the opinion
that the employment of a truant officer and the enforcement of the
compulsory education law would inflict an intolerable burden of poverty
upon the community. The secretary of the associated charities, who
was a minister, and the superintendent of the poor, also a minister,
agreed that nothing could be done which would make it appear that
the glassworks had been employing pauper labor, and therefore they
could not undertake to furnish scholarships for the children whom the
factory inspectors turned out of the glassworks because they were under
fourteen years of age. Only teachers of the primary schools expressed
regret at losing some of their brightest and best behaved little boys
out of the lowest grades to go to work “among those drinking, swearing,
gambling ragamuffins at the works.”
It is clear gain for a community to be freed from such obliquity of
moral vision as this; to be forced to face its own burden of sins of
omission and commission against the children of its poorest and most
dependent citizens; to be constrained to take upon the broad shoulders
of the adult population that burden of maintenance which children
cannot carry, even though in the cruel effort to force them to do the
impossible they may be crushed body and soul as hundreds of children
have been crushed and ruined in the beautiful and prosperous city of
Alton.
In Southern New Jersey, in Western Pennsylvania, wherever the
glass-bottle industry attains a high state of development, the same
tendency is observable. Dependent families are, as it were, enticed to
bring their young children to work in the glass-bottle factories. When
a large number of such families have come, the demand for still more
young boys leads to the importation of detached lads. Then the presence
in the community of an undue proportion of dependent persons, young
and old, serves as a reason for deferring legislation restricting the
employment of the youngest children and providing for their education.
There is nothing either accidental or passive in this process.
Although the manufacture of glass is one of the industries most
highly protected by the tariff for many years past, and although
the wages of glass-blowers are protected by a most influential and
all-embracing union, yet employers and glass-blowers have, in at least
two states, worked together to keep the children from receiving any
adequate legislative protection. In Illinois for ten years the glass
manufacturers were successful in their unwearying efforts to prevent
the enactment of a provision restricting night work to persons over the
age of sixteen years. And even when the present enlightened measure
was finally passed, in 1903, this was done against the protest of the
manufacturers and of a glass-bottle blower who appeared before the
senate committee at Springfield in opposition to the bill. In New
Jersey, in 1904, there was the same conflict, the glass-bottle blowers’
union as such urging the passage of a law prohibiting night-work for
children, and the glass manufacturers nevertheless securing for the
opposition the support of a state senator at Trenton, who had once
been a blower, and who succeeded in getting stricken out of the bill
this most valuable of its provisions, despite the united efforts of
the labor organizations of the whole state, and of the Children’s
Protective Alliance, comprising forty societies for the protection and
welfare of children.
In Pennsylvania, in March, 1903, the Western Pennsylvania Association
of Glass Manufacturers voted at a public meeting held in Pittsburg
to keep a committee at Harrisburg throughout the session of the
legislature to prevent the enactment of a measure prohibiting
night-work for children and all employment of illiterate children. So
successful was this committee that the friends of the bill were not
even granted a hearing before the senate committee to which the bill
was referred. In all these cases the arguments used were identical.
Poverty must not be intensified by prohibiting the employment even of
the youngest and most illiterate children.
Fortunately, the friends of the working children have at last succeeded
in bringing to light the hypocrisy of this plea. It has been shown that
for a series of years the glass manufacturers of New Jersey and Ohio
have imported children from other states. Charitable institutions and
child placing agencies have been appealed to to furnish detached boys
and have done so in more than one case. Children have been sent from
one state to another to meet the demand. It is now only a question of
time until all the legislatures which have to deal with this child
destroying trade shall take the same view which Illinois and New York
have taken; and shall say that the state can better afford to part
with such an industry than to sacrifice to it hundreds of children
every year. And when they do this, no state will lose its glass-bottle
industry; but the installation of mechanical contrivances to supplant
boys will go forward just as cash carriers are now supplanting cash
children, and as the telephone is replacing the telegraph and messenger
boy in many suburbs. In some occupations child labor by its very
cheapness to the employer actually hinders the use of devices which
are costly in the initial installation; and it is believed that the
glass-bottle industry is one of these.
The glass-bottle industry illustrates one significant phase of child
legislation in this country; namely, the long default of philanthropy
on behalf of the wage-earning children. We have had no Lord Shaftesbury
devoted to the child workers and coöperating with the organizations
of workingmen in the interests of the children. To the organizations
of labor are due all the earlier statutes for the protection of the
working children, and this protection has been left wholly to the
trades unions until within a very few years. In certain industries this
has been done effectively, as in the cigar trade where the introduction
of machinery is only now leading to a large influx of children. In
other industries, the adaptability of children has been so great as
to render the unions powerless to protect them adequately either by
legislation or by refusing to work with them. Conspicuous among these
are the textile industries. In still other trades, the wages of the
worker have been made to depend in some degree upon the interlocking
work of children, and in these the difficulties attending progress
towards adequate guarding of childhood have been most conspicuous
of all. Such is the glass industry. Here the wage of the blower of
bottles, lamp chimneys, drinking glasses and many other small objects
depends largely upon the speed with which children as moulders and
carriers coöperate with him. Hence the blower has a strong money
interest in the employment of nimble children in abundance.
It is vastly to the credit of the workers in the trade that, through
their organizations, they have made a struggle covering the last
quarter of a century for statutory prohibition of night work for
children. And it is easily understood how their efforts have here and
there been foiled by a weak brother proving open to the persuasions
of the employers and ready to appear before legislative committees on
behalf of the farther work of children in the same old way.
It is, however, sadly true that workingmen are not always experienced
in the drafting of bills, and that some of the measures which they have
advocated have proved non-enforceable when enacted. Moreover, they
have in several conspicuous cases been induced to contribute actively,
though unintentionally, to the nullification of the statutes the
enactment of which they had secured, by accepting as responsible heads
of the factory inspection departments men whose sole qualification for
the position was their professional devotion to the cause of trade
organization. Two classic examples of this are the chief factory
inspectors of Pennsylvania and Illinois during the closing years of
the nineteenth century. In the former state the unions acquiesced in
the utterly incompetent administration of the department of factory
inspection because the chief inspector had been for several years
an officer of the Glass Workers’ Union of the Pittsburg district,
although he effectively blocked every effort to improve the laws with
regard to the employment of children at night or while illiterate.
The chief inspector of factories of Illinois from 1897 to 1901 had
been, previously to his appointment, for twenty-seven years on the
pay roll of the Illinois Glass Company at Alton. Throughout his term
of office there were no prosecutions for violations of law by glass
manufacturers, nor was the child labor law of Illinois amended. Yet no
effort seems to have been made by any trade organization to secure his
removal and the appointment of an effective official.
Within five years philanthropic people, notably many organizations of
women, have systematically worked for the enactment and enforcement
of child labor legislation, usually in coöperation with the state
and local organizations of workingmen. Just in proportion as this
coöperation develops will the gains on behalf of the working children
become permanent; and the coöperation, itself, is a process of
education for both philanthropists and workingmen.
FOOTNOTES:
[1] One of the curiosities of legislation is that provision of the
penal code of New York which reads as follows: Penal Code--Sec. 292a
(Laws 1893, Ch. 692): “A corporation or person employing messenger
boys who knowingly sends or permits any person to send any messenger
boy to any disorderly house, unlicensed saloon, inn, tavern or other
unlicensed place, where malt or spiritous liquors or wines are sold, on
any errand or business whatsoever, _except to deliver telegrams at the
door of such house_, is guilty of a misdemeanor, and incurs a penalty
of fifty dollars, to be recovered by the district attorney.”
[2] See Appendix I.
CHAPTER II
THE CHILD, THE STATE, AND THE NATION
It has been shown that children are working in their homes, in the
streets, in commerce, and in manufacture; and it appears that there are
divers economic and social causes for their work.
Chief among these causes of child labor is the greed of parents, due
largely but not exclusively to poverty. Two cases out of the writer’s
acquaintance may illustrate the false ideals which underlie much
parental exploitation of young children.
An Italian immigrant arrived in this country possessed of nothing
beyond his wife, little son and daughter, and railroad fare to Chicago.
In that city he rented one dark room in a tenement-house and proceeded
to pick rags in the streets. His wife sorted the rags in the court of
the tenement-house with the help of the daughter; and the boy became
a boot-black as soon as he was strong enough to make leather shine.
The children never attended school, the compulsory attendance law
being, at that time, wholly illusory. The father prospered, placed
money in the savings-bank, and in an incredibly short time began to
buy, under a third mortgage, the house in which he lived. The court
of the tenement-house becoming too small for his work, he rented a
vacant lot on which he stored rags, old iron and junk of all sorts.
He never ceased to pick rags, and transferred the labors of his wife
and daughter from their court to the new place of business which he
surrounded with a high fence. He completed the payments for all the
mortgages upon the tenement-house, continuing to the time of his death
to live, with all his family, in the dark room which he had occupied
on his arrival. He paid for the corner-lot upon which he conducted his
business and made other investments. It was his ideal to leave his
children a large fortune. But one day he trod upon a rusty nail, and
with characteristic niggardliness, bound up his bleeding foot with
one of his own rags. Lockjaw followed and he died, leaving to his now
grown up, illiterate son and daughter one hundred and forty thousand
dollars. The son, by drinking and gambling, dissipated the fortune in a
few months, and the daughter disappeared into the sad obscurity of the
Levee.
In the case of the second family, a young Bohemian, able-bodied and
eager to work, brought his bride to this country, both filled with the
hope of earning and owning a home. When the eldest child was eleven
years old, the father was killed on the railroad, where he was at work
as a section-hand, and the home, half-paid for, was lost by the widow.
But she never wavered from the early ideal, and sent her eldest boy
at once to work in a cutlery, where he riveted the wooden handles of
knives, performing an entirely mechanical task adapted to his feeble
intellect. This child was hunchbacked, feeble-minded and consumptive.
When the mother was remonstrated with for exposing him to the fatigue
and danger attending his work among wood-dust and steel-filings, her
reply was: “Him no good. Him work, send Valeria and Bocumil school, buy
house, them some good.” For years, the factory inspectors of the state,
and the local school officer, after the enactment of the compulsory
attendance law, endeavored to free the unfortunate boy from his deadly
occupation. The mother made whatever affidavits might be necessary from
time to time, to enable him to continue, and relentlessly sent his
brother and sister to work at the earliest moment possible. When last
seen, she was rising at three o’clock in the morning to dig onions for
a pickle factory in the outskirts of the city; the daughter Valeria,
ten years old, was working from dawn to dark throughout the summer,
sorting onions; the cripple was dying of overwork and neglect; and
the other boy, Bocumil, originally healthy, had become deformed from
beginning too early to carry boards on his back in a furniture factory.
The widow, however, regarded herself and was regarded by her approving
pastor as a model of thrift because she had bought and partially paid
for a tiny frame cottage, on the prairie, far from any school, in the
immediate neighborhood of the pickle-factory. She will never know that
she has lost for her children all the best things that America offers
to the immigrant child, in the life of the public schools. Fortunately,
the recently enacted stringent laws will make it impossible for other
children coming to Chicago to be deprived, by the false ideals of
their parents, of those precious possessions of child life in America,
leisure and school.
A second cause of child-labor is the greed of employers for cheap
labor, enhanced by every improvement in machinery of the kind that
makes the work of children available; and enhanced, also, by the
very cheapness of the children to such an extent as to delay the
introduction of new machinery if its installation is costly. This greed
is exhibited in its most odious form in the glass industry, the textile
industry, and the sweating-system. It knows no restraints except those
of effective legislation enforced by enlightened public opinion, as
is shown by the action of those Northern cotton mill men who obey the
laws of Massachusetts and New York in their mills in those states, but
in Georgia fall to the level of their local competitors, employing
children ten years old and less, throughout eleven hours a day.
A third cause of child labor is the greed of the community in desiring
to keep down the cost of maintenance of its dependent class. This greed
disguises itself under the form of solicitude for the moral welfare of
the children. Just as the managers of the worst so-called reformatories
insist that children must work under the contract system, “because they
must be kept busy to keep them from being bad,” so this solicitude
for childish morals insists that “children must not be habituated to
dependence,” quite forgetting that dependence is the quality bestowed
upon childhood as its distinguishing characteristic.
Any candid person, on being asked, “What virtues may be reasonably
expected of children?” must reply that we do not yet know. Our studies
of the psychology of childhood are still so imperfect and inconclusive
that it is not safe to dogmatize in this field. But by a process of
elimination it is possible to arrive at certain conclusions which seem
worth at least careful consideration.
Thus, observation of so-called self-made men suggests a serious danger
that a child precociously self-respecting in the matter of earning
his living may pay a high price, later in life, for his precocity.
It is proverbial that the employer who began life as a working boy
and through continuous exertions rose to power and responsibility,
is apt to be a ruthless employer. The unnatural strain of his own
early experience seems to entail this penalty upon his character
and consequently upon his unhappy employees. Self-respect due to
self-maintenance seems to be a virtue suitable to the later years of
adolescence and to adult life,--never to childhood. Moral precocity
seems to be quite generally followed by exhaustion or by reaction
taking the form of greed, rapacity and calculating self-seeking.
Just as excessive fatigue, or habitual loss of sleep in childhood is
punished in later life by the craving for stimulants, and by nervous
insufficiency manifesting itself in the most diverse ways,--so the
burden of industrial employment borne in early, tender years, disables
the boy or girl for enlightened, self-supporting citizenship in later
life.
To impute a virtue not normal to childhood and then insist that the
children shall live up to adult standards applied to that virtue, is
perverted, and injurious alike to the community which follows this
course and to the children who suffer under it. If the burden of
self-maintenance or the attempted maintenance of others is placed upon
young children,--if child labor is tolerated,--the ethical standards of
the community are bad. For a task which is normal and right for adults
cannot be performed by children without sacrificing in the process
their future usefulness to the Republic.
The insistent plea that children must work in order that they may
acquire habits of thrift and attain prosperity for themselves and
their families is uttered with greatest persistence by the employers
who profit by the labor of the children. It is the glass manufacturers
who voice this tender solicitude for the moral well-being of the
wage-earning children in New Jersey and Pennsylvania, when there is a
growing movement in those states for prohibiting night work, as it has
been prohibited in Illinois. In the South, it is the cotton-mill owners
and their legal advisers who insist that little children from the
mountain farms must toil eleven hours a day in the mills of Georgia,
working throughout the night whenever it may be useful to their
employers to have them do so.
These pleas are heard with willing ears by communities which begrudge
money for the maintenance of schools and the assistance of dependent
widows and orphans; and not without good reason. No sooner had the
new law of New Jersey required children to attend school to the
fourteenth birthday, and prohibited boys under that age from working
in manufacture, than it became necessary to build a new schoolhouse
in a suburb of Millville, to accommodate the boys turned out of the
glassworks. In Alton the enforcement of the child labor law of 1893 led
to the immediate construction of a new schoolhouse for the children
freed from the glassworks, and to the reopening of a building which
had long been out of use. Wherever children are freed from work, the
community must provide for them schools, teachers, attendance agents,
factory inspectors and all those officials and provisions which are
essential to the care and defense of childhood under the pressure of
the competitive system.
Besides being essentially immoral, the effort to burden young children
with the task of self-maintenance is doomed to failure, for under
existing conditions a child does not, and cannot achieve complete
self-maintenance. The three great series of industries in which
children are largely employed,--the textiles, glass-making and the
needle-trades,--are parasite trades. They are all protected by tariffs
for the advantage of the employers;--and by more or less stringent
trade regulations for the advantage of the adult male employees. In
the case of the needle-trades, there are lavish subsidies from the
public treasury of New York City, the great center of the needle-trades
for the western hemisphere. By the help of these subsidies, sewing
is done by the inmates of institutions erroneously called private,
while maintained by the taxes of the community, at rates with which
no private manufacturer can long compete. But more insidious than
all these contributions to the parasite industries is the steady
contribution of underpaid work from children who carry home wages too
small to support them.
Parents become willing to exert themselves less when the eldest boy
and girl begin to contribute something towards the family maintenance,
and are not strenuous in the demand that the child’s wage shall afford
self-support. “Every little helps,” is the hand-to-mouth consideration
with which the hard-worked immigrant withdraws his son or daughter from
school on the first day that the law allows.
The unthinking community tends to approve every exertion in the
direction of money earning on the part of those who are most nearly at
the line of submergence, asking no questions as to the ultimate effect
upon the future citizen.
The oncoming generation neither knows nor cares what burden of
incapacitated members the present generation is preparing for it. But
the burden will have to be borne, just in proportion as the children
of to-day are deprived of the right to childhood. And nothing is
more surely handed down than the callous indifference of the mass of
the people to the _causes_ of that destitution which is an intrinsic
part of the life of every manufacturing community;--as, for instance,
the death or disability of the breadwinner, or the widespread and
ever-increasing custom of desertion by the fathers of burdensome young
children.
Thus the essentially immoral effort to place upon the children the
burden of self-maintenance not only fails at the moment,--it reacts
injuriously upon the community, preparing for the next generation an
undue share of incapacitated members, bequeathing to the future a large
proportion of unfit and incapable citizens, and finally generating,
among the people at large, indifference to the causes of death or
disability of the breadwinner.
On the other hand, with the growing recognition of the right of the
child to maintenance and education throughout a prolonged period, goes
a lively interest in the health and welfare and probity of the normal
breadwinner, who is theoretically responsible for its support.
In other words, while the demand for child labor is an economic one,
the causes of its persistence are moral and social and are rooted
in the false ideals of parents, employers, taxpayers, and all those
indifferent people who care nothing what citizens are being trained for
the future life of the Republic.
=Consequences of Recognition of the Child’s Right to Exemption from
Work.=--Wherever the community recognizes the right of the children
to freedom from labor, the question of maintenance comes to the front
and the widows and dependent orphans loom large in the imagination of
the kindly. On the other hand, where the effort is made to place the
burden of maintenance upon young children, the loss of the breadwinner
appears of less vital importance to the community. Tuberculosis,
carrying off heads of families, burdens the manufacturing communities
of the United States annually with thousands of widows and orphans.
Preventable deaths of breadwinners in the railway service burden in the
same way the communities in which their families live. If now, these
communities face the task of cherishing the children and educating
them throughout childhood to full fitness for citizenship, the problem
of orphanage relates itself, in a new and vital way, to the question
of the prevention of needless deaths of men in the prime of life.
Orphanage becomes recognized, not as an accident or an inevitable
misfortune for the individual family, to be borne with what fortitude
can be summoned; but as a social and industrial phenomenon, a burden
to be minimized by preventive and precautionary measures. It is not
accidental that Massachusetts, the state which has longest guarded the
right to childhood, is also the state in which the safety of life and
limb of the adult worker is best safeguarded by statutory provision.
The enforcement by the Interstate Commerce Commission of statutes
providing for life-saving devices to be used upon railways, has
undoubtedly diminished the preventable deaths of breadwinners, reduced
the number of orphans, limited the temptation to exploit young
children, and thus reacted in an important way to the ethical gain of
the nation, quite aside from its direct value to the railway employees.
When young children are made ineligible as breadwinners, the
responsibility is placed where it belongs, upon their parents or upon
the community. And there is nothing more moralizing going on at
present in the United States than this shifting of responsibility from
the weaker to the stronger.
Hand in hand with restriction upon the work of little children goes
increased care to prevent the importation into the state of dependent
and delinquent boys and girls. Thus, for instance, Illinois and
Michigan have now rigid statutes prohibiting bringing into those
states any child whose future maintenance is not provided for either
by the presence of an accompanying parent or guardian, or by a bond
furnished by an incorporated society for the care and guardianship
of the child. Recent revelations of the importation of boys from one
state into another, for the use of glass manufacturers, show an urgent
need for similar care on the part of all states in which this industry
flourishes. Just as the textile mills, in the days of Sir Robert Peel’s
act, sought apprentices among the little children in the workhouses
of England, so the glass manufacturers, to-day, seek orphans and
other detached boys from poorhouses and voluntary charitable bodies;
and the traffic in such boys goes forward where it is not checked by
legislation and by the coöperation of labor organizations and child
labor committees working together.
When the orphans are scrutinized and provided for, it becomes clear
that the problem of child labor is really not the problem of the
orphan. It is the problem of cheap hands for the employer of cheap
labor;--the problem of permitting to selfish parents the luxury of
absorbing the premature earnings of young children. But it is the
pride of the enlightened employer that he supplants human labor with
mechanical devices as rapidly as ingenuity enables him to do this;
and every restriction upon the supply of children in the labor market
stimulates this process.
It is clearly the duty of the parent to support his children; that is
his obligation to the Republic. He must insist upon wages sufficient
to enable him to do this; and the withdrawal of thousands of young
children from competition with adults contributes to his ability to
make his own terms for wages wherewith to support his own. An aged
Welsh miner, of the writer’s acquaintance, who had emigrated to
Illinois, once related upon the floor of the state legislature, of
which he was a member, his own experience in this respect. In Wales,
he and his wife and two little sons had all worked underground, making
the barest living. It was proposed to prohibit the work of women and
children underground and he was filled with consternation lest they
all starve. But the law was passed, the wife and children, instead of
mining coal, lived above ground, the children attending school and the
wife cultivating a garden; and within twelve months the father of the
family was earning more than all four persons had previously earned by
their combined labor. So convinced was the speaker that his experience
was typical of the depressing effect of the work of women and children
in unsuitable occupations, that he convinced his colleagues, who passed
unanimously the pending child labor bill.
The practical value, to the state and to the children, of effective
child labor legislation is well illustrated by a comparison of the
employment of children in New York, Pennsylvania and Massachusetts.
When rated according to their population and the value of their
manufactured products, the two leading states are New York and
Pennsylvania, the former excelling in both respects according to the
census of 1900. In the number of children under the age of sixteen
years engaged in manufacture, these states excel all the others, as
appears from the following table of states having more than five
thousand such children.
CHILDREN UNDER 16 YEARS OF AGE ENGAGED IN MANUFACTURE[3]
Pennsylvania 33,135
New York 13,189
Massachusetts 12,556
Illinois 10,419
North Carolina 10,377
South Carolina 8,560
New Jersey 8,042
Georgia 6,373
Maryland 5,884
Wisconsin 5,679
Rhode Island 5,036
In this table, however, it is Pennsylvania which comes first and New
York which takes second place, there being 33,135 children under
the age of sixteen years engaged in manufacture in Pennsylvania,
compared with 13,189 children under that age in the state of New York,
a difference of 19,946. This does not include children engaged in
commerce and mining;--does not take into account mine boys or breaker
boys, office boys, newsboys, bootblacks, peddlers, delivery boys, cash
children, or children who work out of school hours while regularly
attending school. It is strictly a statement of the children employed
in manufacture in both states.
The astonishing excess of children employed in Pennsylvania is
emphasized by the circumstance that New York has not only a larger
population but a larger total value of manufactured goods than
Pennsylvania. How then is the fact to be explained that Pennsylvania
employs in manufacture two and one-half times as many children as New
York?
One explanation may be found in certain differences in the child labor
laws in force in the two states for several years preceding 1900. Thus
in Pennsylvania children entered upon factory work a year earlier
than they had been permitted to do in New York since 1889, the age
for beginning work having been, until May, 1905, thirteen years in
Pennsylvania and fourteen years in New York.
In Pennsylvania, a child was not, before 1900, required to be able to
read and write before beginning to work in a factory. In New York,
since 1893, a child under sixteen years of age must be able to read
fluently and write legibly simple sentences in the English language
before it can legally enter a factory.
In New York a minor under the age of sixteen years cannot legally be
employed in a factory after nine o’clock at night; in Pennsylvania,
boys and girls alike could, until May, 1905, at the age of thirteen
years be employed ten hours six nights in the week. Even yet, boys of
fourteen years may be employed all night in the glass industry and in
certain other branches.
There was greater difficulty in New York in obtaining the certificates
required to be filed with the employer before a child may legally begin
to work. In Pennsylvania, the parent was required merely to make oath
as to the age of the child before any notary, and, until May, 1905,
the affidavit thus made protected the employer against prosecution for
violation of the child labor law, while the parent was nominally liable
to the charge of perjury if the age of the child was falsely stated.
In New York, since 1896, the affidavit of the parent is only one of
three assurances of the child’s age and qualifications which must
be included in the certificate deposited with the manufacturer. The
parental oath must be supplemented by the written statement of the
teacher that the child has regularly attended a school in which
instruction is given in reading, writing, arithmetic, geography and
English grammar; and this must be farther strengthened by the statement
of the officer of the board of health, who alone can issue the
certificate, that he is satisfied that the child is fourteen years of
age.
This provision, in force from 1896 to 1903, has now been supplanted
by a more drastic one. In the years 1896-1900, however, the threefold
requirement probably contributed to keep down the number of working
children in New York compared with the lax issuance of affidavits
by notaries in Pennsylvania, with no other check than the fear of a
remotely possible prosecution of the parent on the charge of perjury.
Briefly stated, the differences appear to be these. In Pennsylvania, a
child of thirteen years could, until May, 1905, work in a mill at night
without breaking the law. In New York, a child may not begin to work
under the age of fourteen years; an illiterate child may not work under
the age of sixteen years; and a minor under eighteen years may not work
after nine o’clock at night in manufacture. Moreover, the factory law
is better reënforced by the compulsory education law in New York than
in Pennsylvania.
In New York for several years preceding the census year, 1900, children
between the ages of twelve and fourteen years were required to attend
school 80 days in the year. The Board of Health of New York City
refused to issue certificates to such as had failed to complete the 80
days’ attendance in the year preceding the fourteenth birthday, sending
such children back to school to finish the uncompleted term.
In Pennsylvania, children were, in the same years before 1900, merely
required to attend school 70 per cent. of the school term in the
district in which they resided.
The results of these differences in the child labor law and the
compulsory education law are reflected in two other tables of the
Census of 1900 (printed elsewhere in this chapter) according to which
New York had 4,740 illiterate children between the ages of ten and
fourteen years, compared with 6,326 such children in Pennsylvania;
and New York ranks fourteen in the scale of fifty-two states and
territories when measured by the percentage of children between these
ages who are able to read and write, while Pennsylvania is number
twenty in the same scale.
The statistics of these two leading manufacturing states are discussed
thus in detail because they indicate both the need of farther
legislative protection for the children, and the gain which has
already been made in New York by the long enforcement of the imperfect
provisions of the earlier laws. For ten years, beginning in 1893, New
York is believed to have been the only state which required children
under the age of sixteen years to be able to read fluently and write
legibly simple sentences in the English language before permitting them
to begin to work for wages. The practical working of this provision was
illustrated when the first suit under it was brought against a clothing
contractor in New York City who had violated the law by employing a
Russian girl fifteen years of age who could neither read nor write in
any language. Six weeks elapsed after the arrest of the employer and
the dismissal of the child from work, before the case came up for trial
before the magistrate. The judge dictated to the girl: “This house is
built of bricks,” by way of a simple sentence to be written legibly.
The child promptly wrote: “This hous is bilt of briks,” and the case
was dismissed. The inspector, angry at losing his case, and puzzled at
the child’s speedy acquisition of the English language in words of one
syllable, made some investigation of the circumstances and learned
that, on the day following the girl’s dismissal from employment, she
had entered the public school, attending both the day and evening
sessions. She had also attended two different Sunday schools, one in
the morning and one in the afternoon, and had taken books from the
library. Thus, in the space of six weeks, by specializing strictly
upon learning English, she had saved her employer a heavy fine, and
had prepared herself to resume her work in his shop according to the
requirement of the law.
Recently the new statutes which require more educational preparation
for work, prescribing that every boy must attend day school until the
work of the fifth year of the public school is finished and night
school to the sixteenth birthday or the completion of the work of the
eighth year, have brought to light several instances of the padrone
system within the families of immigrants.
A man and his wife imported a sister aged fifteen years from Italy
for the purpose of securing for the wholly illiterate girl immediate
work in a silk-mill. When it became clear that the child would not be
ready to comply with the new educational requirements within a year the
intention of the relatives was betrayed by their cruel treatment of the
dependent girl.
There could scarcely be more undesirable immigrants than half-grown,
illiterate children brought into the congested manufacturing centers
by their sordid relatives for the express purpose of crowding into
factories and sweat-shops. It is a most valuable function of child
labor legislation to discourage the immigration of families coming
to this country for the purpose of exploiting their children in the
textile mills, the street trades and other undesirable occupations.
However welcome immigration may be to the employers and the
transportation companies, it is a valuable addition to the national
life only so far as the immigrant children can be made into trustworthy
American citizens. To check that form of the padrone system which
consists in bringing young sisters-in-law and brothers-in-law to this
country for the purpose of sending them into silk-mills, or hiring them
out to master boot-blacks under the pretense that they are dependent
orphans, is one of the beneficent functions of compulsory education
laws and child labor laws,--though of course a merely incidental
feature of such legislation. The correspondence between the Italian
and Russian colonies in America, and the relatives remaining in the
old country, is so continuous, that the new educational requirements
of the State of New York will be well known on the other side of the
ocean within a year and may well be regarded as one of the wisest
forms of restriction upon undesirable immigration. The state of New
York welcomes immigration on the largest scale that the world has ever
beheld. But it humanely insists that the immigrant must meet the terms
prescribed by the state, which include maintaining his children until
they can read and write English, even though that keep them at school
and away from work until the sixteenth birthday.
The same general result was observed in Chicago, in the fall of 1903,
after the enactment of a similar provision in Illinois. A professional
beggar was seen taking his children to school. A friendly visitor who
had labored in vain for seven years to induce him to let them go to
school, was greatly interested in the change and, on inquiring about
it, was told by the beggar that the children would soon be old enough
to go to work, but would not be granted the necessary papers unless
they had proper certificates of school attendance. The statute thus
reënforces the parental sense of duty when that is under the heaviest
pressure of temptation to exploit young children, in a strange land, in
dire poverty, in the helplessness of illiterate adults out of work and
in need of reënforcement of all kinds.
A comparison of the status of child labor in Massachusetts and in
Pennsylvania confirms the opinion that legislation has long been
gradually benefiting both the children and the community just in
proportion as it has been effectively stringent. It is not accidental
that Massachusetts had in 1900 12,556 children in her mills compared
with 33,135 in Pennsylvania. The textile industry in both states calls
for children. In Massachusetts, the public conscience has registered
gradually throughout a series of years, and the restraints imposed by
frequently amended legislation have kept the number of working children
from growing rapidly. In Pennsylvania there were, until May, 1905, only
the most meager changes in the factory law since its enactment in 1889.
In Massachusetts, a child cannot legally work in a mill under the age
of fourteen years. In Pennsylvania, it could, until May, 1905, legally
enter a mill on the thirteenth birthday, and defects in the wording
of the law facilitated perjury to such an extent that children were
found in textile mills and tobacco factories at the age of ten years.
In Massachusetts, a woman or minor under eighteen years of age cannot
legally work in a mill after ten o’clock at night; but in Pennsylvania
whosoever could work at all, could work all night, little girls only
thirteen years of age included. In this respect Pennsylvania compared
unfavorably, as has been pointed out, with Alabama, whose new law
restricts to eight hours at night the work of children between the
ages of thirteen and sixteen years. It is not generally known that
there was a serious danger to little girls arising from the custom,
which prevailed in some Pennsylvania mills where night-work was done,
of turning the children out into the dark, at midnight during the
warm weather, just as employees are expected to go forth at noon when
working on the day shift. The associations of such little girls, at
such hours, in such surroundings, are a fit subject, not only for
painful contemplation, but for the most vigorous action of all persons
interested in the prevention of one of the direst forms of cruelty to
children.
Undeterred by the competition of textile mills in less progressive
states, as, for instance, Pennsylvania and Rhode Island, Massachusetts
excelled all rivals in her statutory care for children employed
in manufacture, from 1874 to 1903. In the latter year New York
and Illinois enacted laws which went beyond the provisions of
Massachusetts, both in the educational requirements exacted of children
before going to work, and in the hours of their labor.
In 1904, Governor Bates appointed a Committee on the Relations of
Employer and Employee, consisting of Carroll D. Wright, United States
Commissioner of Labor, Davis R. Dewey, of the Massachusetts Institute
of Technology, Henry Sterling, Royal Robbins and William N. Osgood.
These gentlemen embodied in their report, dated January 13, 1904, a
series of recommendations with regard to the employment of children
which, if enacted into law, would still leave Massachusetts fourth
in rank among the states when ranged according to the length of the
working day permitted to children under the age of sixteen years.
They say: “From such inquiries as we have been able to make we do
not believe that the manufacturing interests of the state would be
seriously affected by the extended prohibition of night labor after 7
P. M. to all children under sixteen years of age.... The arguments in
favor of shutting children out from night-work are so obvious that they
do not need extended discussion, nor does it appear that one kind of
employment should be favored as against another. The physical and moral
advantages to be gained by exclusion from night-work are common to all
children. We therefore recommend that no children under sixteen years
be permitted to engage in any gainful occupation between 7 o’clock in
the evening and 6 o’clock in the morning.”
The extended restriction of the hours of young mercantile employees to
58 in one week during the month of December became law in 1904, but
children may still be employed in stores and mills to ten o’clock at
night provided they do not work more than 58 hours in the week.
The significant point is that the Committee[4] does not recommend that
the hours of labor of children be at once reduced to eight in one day
as in Illinois, or to nine in one day as in New York and Delaware,
or to fifty-five in one week as in New Jersey. On the contrary, the
Committee said: “Inasmuch as the labor of children in some industries
interlocks with the labor of adults who now work ten hours per day, we
fear that such restriction would practically result in the discharge of
children from employment. Such an outcome would be unfortunate, unless
children were forced to attend school by a change in the compulsory
school law already referred to. We therefore do not favor consideration
of legislation further limiting the number of hours of labor until that
question is reported upon by the State Board of Education.”
It is never to be forgotten that, hitherto, Massachusetts has
fearlessly gone forward in her course of educating and protecting her
children regardless of the action of other states and their competing
interests. Neither, however, is it to be forgotten that there are now
more spindles in the cotton industry south of Mason and Dixon’s line
than north of that line; and that the pressure of Southern competition
renders it increasingly difficult to maintain the position already
achieved by Massachusetts. The enforcement of existing requirements
becomes more burdensome as the reductions in wages of adults incite
parents to perjured affidavits stating that children are older than
they really are, in order to add the child’s wage to the decreasing
family income, and the force of the statute is thus undermined.
=Inter-State Aspect of the Right to Childhood.=--Hitherto the right
to childhood has been considered in the light of the experience of
children in certain occupations, and in the light of the legislative
provisions of certain states for protecting children from too early
toil. The broader question, what the people of this nation as a whole
are doing to assure to the Republic, a generation hence, an intelligent
citizenship, has scarcely been formulated. The question is, however,
compendiously answered by two tables of the United States Census
of 1900, which have not yet received that general and widespread
discussion which their significance renders imperative.
The first table shows the percentage of children between the ages of
ten and fourteen years who were able to read and write, in 1890 and
in 1900. Except Nevada, whose Indian children were first included in
1900, all the states have been reducing the percentage of illiteracy.
The figures upon which the percentages are based are given in a second
table, wherein the states are twice arranged, once alphabetically and
again in the order of the ability of the children to read and write,
those states being grouped at the top which have the least number of
illiterate children and those states grouped at the bottom which have
the largest number of illiterate children.
PER CENT. ABLE TO READ AND WRITE AMONG PERSONS 10 TO 14 YEARS OF AGE
_1900_ _1890_
1. Nebraska 99.66 Iowa 99.23
2. Iowa 99.63 Massachusetts 99.17
3. Oregon 99.58 Ohio 98.92
4. Ohio 99.51 Kansas 98.86
5. Kansas 99.48 Connecticut 98.79
6. Indiana 99.45 Illinois 98.75
7. Connecticut 99.43 Nebraska 98.75
8. Utah 99.34 New York 98.62
9. Massachusetts 99.33 Wisconsin 98.35
10. Michigan 99.30 Minnesota 98.21
11. Washington 99.30 Oregon 98.20
12. Minnesota 99.29 Michigan 98.17
13. Wisconsin 99.27 Indiana 98.00
14. New York 99.26 California 97.93
15. Illinois 99.18 New Jersey 97.86
16. Wyoming 99.08 Pennsylvania 97.82
17. Vermont 99.05 Washington 97.75
18. South Dakota 99.00 Maine 97.57
19. California 98.99 Vermont 97.57
20. Pennsylvania 98.99 South Dakota 97.55
21. New Jersey 98.81 Colorado 97.21
22. Idaho 98.77 New Hampshire 96.63
23. Colorado 98.48 Montana 96.47
24. New Hampshire 98.31 Utah 96.24
25. Dist. of Columbia 98.25 Wyoming 96.23
26. Rhode Island 98.12 Idaho 96.18
27. Montana 98.07 Rhode Island 96.03
28. Maine 97.92 North Dakota 95.58
29. North Dakota 97.65 Dist. of Columbia 94.61
30. Oklahoma 97.26 Missouri 94.48
31. Missouri 96.64 Nevada 92.83
32. Delaware 95.49 Oklahoma 91.81
33. Maryland 95.36 Delaware 90.96
34. West Virginia 94.74 Maryland 90.54
35. Nevada 91.88 West Virginia 89.16
36. Kentucky 91.56 Texas 85.55
37. Texas 90.74 Kentucky 85.17
38. Florida 86.24 Florida 82.43
39. Tennessee 85.08 Tennessee 80.94
40. Virginia 84.33 Arizona 79.62
41. Arkansas 83.80 Arkansas 77.89
42. New Mexico 80.07 Virginia 77.32
43. North Carolina 78.25 Mississippi 73.47
44. Arizona 77.79 New Mexico 72.04
45. Mississippi 77.62 North Carolina 69.38
46. Georgia 77.21 Georgia 66.73
47. Indian Territory 75.61 Alabama 64.50
48. Alabama 71.11 South Carolina 61.03
49. South Carolina 70.44 Louisiana 57.26
50. Louisiana 67.12
CENSUS 1900
(Population, Vol. II, Part II, Table 65--pp. 422)
ILLITERATE CHILDREN BETWEEN THE AGES OF 10 AND 14 YEARS IN EACH STATE
Alabama 66,072 1. Wyoming 72
Alaska 1,903 2. Oregon 175
Arizona 2,592 3. Idaho 209
Arkansas 26,972 4. Utah 220
California 1,279 5. Nevada 275
Colorado 742 6. Vermont 287
Connecticut 435 7. Washington 340
Delaware 845 8. Montana 374
Dist. of Columbia 398 9. Hawaii 394
Florida 8,389 10. Dist. of Columbia 398
Georgia 63,329 11. Nebraska 412
Hawaii 394 12. Connecticut 436
Idaho 209 13. South Dakota 472
----------------------------
Illinois 4,044 14. New Hampshire 557
Indiana 1,453 15. Rhode Island 691
Indian Territory 12,172 16. Colorado 742
Iowa 883 17. North Dakota 836
Kansas 878 18. Delaware 845
Kentucky 21,247 19. Kansas 878
Louisiana 55,691 20. Iowa 883
Maine 1,255 21. Maine 1,255
Maryland 5,859 22. California 1,279
Massachusetts 1,547 23. Oklahoma 1,295
Michigan 1,744 24. Minnesota 1,365
Minnesota 1,365 25. Indiana 1,453
Mississippi 44,334 26. =Massachusetts= =1,547=
----------------------------
Missouri 11,660 27. Wisconsin 1,688
Montana 374 28. Michigan 1,744
Nebraska 412 29. Alaska 1,903
Nevada 275 30. =Ohio= =2,048=
New Hampshire 557 31. =New Jersey= =2,069=
New Jersey 2,069 32. Arizona 2,592
New Mexico 4,354 33. =Illinois= =4,044=
New York 4,740 34. New Mexico 4,354
North Carolina 51,190 35. =New York= =4,740=
North Dakota 836 36. West Virginia 5,819
Ohio 2,048 37. Maryland 5,859
Oklahoma 1,295 38. =Pennsylvania= =6,326=
Oregon 175 39. Florida 8,389
----------------------------
Pennsylvania 6,326 40. Missouri 11,660
Rhode Island 691 41. Indian Territory 12,172
South Carolina 51,536 42. Kentucky 21,247
South Dakota 472 43. Arkansas 26,972
Tennessee 36,375 44. Virginia 34,612
Texas 35,491 45. Texas 35,491
Utah 220 46. Tennessee 36,375
Vermont 287 47. Mississippi 44,334
Virginia 34,612 48. North Carolina 51,190
Washington 340 49. South Carolina 51,536
West Virginia 5,819 50. Louisiana 55,691
Wisconsin 1,688 51. Georgia 63,329
Wyoming 72 52. Alabama 66,072
----- ----------------------------
United States 579,947 United States 579,947
The vitally significant fact revealed by the first table is the fall in
the scale, between 1890 and 1900, of the six great industrial states
when measured by the percentage of literacy of their children between
the ages of ten and fourteen years.
When measured by the value of their manufactures, New York,
Pennsylvania, Illinois, Massachusetts, Ohio, and New Jersey stand at
the head of the scale of the states in the order in which they are here
printed. When measured by the percentage of their children between
the ages of ten and fourteen years able to read and write, in 1900,
these states rank altogether differently. Thus New York, instead of
being first is fourteenth; Pennsylvania, instead of being second,
is twentieth; Illinois, instead of being third, is fifteenth; the
other three are Massachusetts, ninth; Ohio, fourth; and New Jersey,
twenty-first. Nor is their position in this scale either stable or
improving. On the contrary, all the six great states fell from a
better relative position during the ten years from 1890 to 1900. In
1890, New York occupied the eighth place, Pennsylvania the sixteenth,
Illinois the fifth, Massachusetts the second, Ohio the third, and New
Jersey the fifteenth. All alike have fallen relatively to the western
states (Nebraska, Oregon, Indiana, Utah and Washington), which have
correspondingly risen.
Pennsylvania and New Jersey seem to have competed for the place of
dishonor at the foot of the list of the six great industrial states.
Pennsylvania occupied that position in 1890, being then sixteenth in
the scale of all the states, and sixth and last of the great industrial
states. In 1900, New Jersey had sunk from the fifteenth to the
twenty-first place, and now ranks one point below Pennsylvania, when
measured by the percentage of her children between the ages of ten and
fourteen years of age who are able to read and write.
The relative fall of Massachusetts from the second to the ninth place
in the scale may be due to several causes. The influx of French
Canadian, Portuguese, Italian, Russian, and Syrian children of the
ages between ten and fourteen years is large, and would doubtless
continue to depress the position of Massachusetts in the table under
consideration. Moreover, Massachusetts was slow to raise the legal age
for beginning to work to fourteen years, and to make attendance at
school compulsory throughout the full school year to the fourteenth
birthday. Not until 1905 did Massachusetts prohibit the employment of
illiterate children before the sixteenth birthday.
Discouraging is the position in the first table of the four great
Southern cotton manufacturing states in which large numbers of young
children are employed in manufacture. In none of the four are eighty
per cent. of the children between ten and fourteen years of age able to
read and write. Of the four, North Carolina stands highest, as number
forty-three in the scale; followed by Georgia, forty-six; Alabama,
forty-eight, and South Carolina, forty-nine. Lowest in the scale is
Louisiana, fifty. Only one of them has risen. North Carolina, which
stood forty-five in 1890, stands forty-three in 1900.
An interesting ray of light upon the child-labor problem shines from
the first table. The six great industrial states whose descent in the
scale it registers, are exceptionally wealthy and progressive in all
other respects, but they are the chosen home of child labor on a large
scale.
The first table thus confirms the opinion that child-labor and
illiteracy are coextensive, and that all these factors, far from
being local and to be dealt with by a small group of Southern states,
form a great and growing series of national problems. The four great
manufacturing states of the South stand at the foot of the scale
of states when graded according to the ability of children between
the ages of ten and fourteen years to read and write; and the six
great industrial states of the North are falling in that scale,
simultaneously and conspicuously. Surely there is need of organized
effort, national in scope, to ascertain the cause of so sinister a
phenomenon, and to remove that cause with the least possible loss of
time.
In the second table there are many significant points, one being
the position of the six leading manufacturing states, New York,
Pennsylvania, Illinois, Massachusetts, Ohio and New Jersey, all nearer
the bottom of the scale than the top, with the single exception of
Massachusetts which is twenty-sixth in the scale of fifty-two. The
other five are all in the third group, ranking as follows: Ohio,
thirty; New Jersey, thirty-one; Illinois thirty-three; New York,
thirty-five; and Pennsylvania, thirty-eight.
When placed according to the actual number of her illiterate children,
Pennsylvania stands lowest among the six leading manufacturing states
and ranks with the states of the South, coming after Maryland and West
Virginia and next above Florida.
Taken together, the six leading manufacturing states had, in 1900,
20,774 illiterate children between the ages of ten and fourteen years,
distributed as follows:
Massachusetts 1,547
Ohio 2,048
New Jersey 2,069
Illinois 4,044
New York 4,740
Pennsylvania 6,326
------
Total 20,774
It is, of course, to be observed that the six leading manufacturing
states receive a vast immigrant population. One conclusion derivable
from the table seems, therefore, to be this: that since these states
attract immigrants whose children tend to remain illiterate, it is
necessary to take energetic measures for dealing with those children;
such, for instance, as the requirement that they must learn to read and
write English before leaving school to begin to work. It is conceivable
that such a requirement, universally and effectively enforced, might
permanently remove one incentive to immigration on the part of the
least desirable immigrants--_i. e._, the hope for wages to be earned by
illiterate young children.
In this table, as in the percentage table, it is the great cotton
states of the South which constitute the foot of the scale, North and
South Carolina, Louisiana, Georgia and Alabama.
The more closely the two lower groups of states are scrutinized, the
clearer the inference becomes that the problem of child labor and child
illiteracy are twin problems, and that together they demand for their
solution no mere sectional effort, but the vigorous determination of
the whole people that the years of childhood shall be held sacred to
the work of education, free from the burden of wage-earning.
The states which stand at the foot of the scale in both tables are
Arkansas, Virginia, North and South Carolina, Mississippi, Louisiana,
Georgia and Alabama. These states have no compulsory education laws.
They are the states which are commonly designated as the “New South”
in discussions of industrial development, particularly in the cotton
industry. In them manufacture increases by leaps and bounds while
legislation lags behind. As has been pointed out, Georgia deliberately
voted at two sessions of the legislature of 1903 to adopt a position
ethically lower than that of England at the time of the enactment of
Sir Robert’s Peel’s act, in 1802. The new laws of North and South
Carolina, Alabama and Virginia approximate closely to the factory
acts of England in 1842, except that the English laws provided for
factory inspectors, which the Southern states have not yet done. It
is with the competition of such communities that Massachusetts has
to do when her Committee on the Relations of Employer and Employee
recommend the consideration of the feasibility of raising the age for
compulsory school attendance to fifteen years, and defer recommending
any shortening of the hours of labor of children beyond the limit of
fifty-eight hours in one week. In view of facts like these, the child
labor problem can never again be regarded as a local problem. It is the
problem of the nation as a whole.
The foregoing somewhat desultory observations upon the effort made to
establish the right to childhood, reveal how far the whole still falls
short of any clear policy of cherishing all future citizens as such in
the interest of the Republic.
All legislation thus far has been a series of compromises achieved by
stirrings of the public conscience concerning some one enormity here
and there. On one side the demands of employers for cheap labor are
reënforced by the pressing poverty of parents; and on the other, there
has until recently been only the inarticulate child, not always even
aware of the injury he was suffering. Then came the trade union eager
to be rid of the child in industry, perhaps for the child’s good,
perhaps in the interest of better wages for the adult competitors. Only
sadly recently has the philanthropist come forward as a person to be
reckoned with, and last of all, the purchaser of the product, demanding
the privilege of buying with a clear conscience the goods for which he
pays.
The resultant patchwork quilt of statutes leaves the children
unprotected, as has been shown, in many places, and is nowhere adequate
to the needs of the children and the rapid development of industry. It
is the purpose of the following pages to suggest what seems reasonable
to strive for during the decade 1900-1910.
=Legislation Needed in the Near Future.=--First of all desiderata
is uniformity among the states on the basis of the best which has
yet been achieved in the most enlightened communities. For lack of
uniformity, progress has been hindered in many states, notably in
the glass industry which, during 1904, successfully represented to
the legislature of New Jersey that, if deprived of the privilege of
employing boys under the age of sixteen years at night, it would
migrate to Delaware and West Virginia, where no such restrictions yet
await it.
In the interest of uniformity, it seems most practicable to adopt as
the minimum age for beginning work, the fourteenth birthday, while
endeavoring to bring to this minimum all the children now engaged in
street occupations, hitherto exempt from restrictions in nearly all
states; and endeavoring, also, to bring to this minimum the statutes
of those states which, as yet, prescribe no minimum age (Georgia),
or a minimum age of ten years (Nebraska), or twelve years (Alabama,
Louisiana, Maine, New Hampshire, North Carolina, North Dakota, Texas,
and Virginia), or thirteen years (Rhode Island).
No one acquainted with the diminutive stature of city children of the
working class at fourteen years of age, can regard the adoption of
this standard minimum age for beginning work as final. It is merely
the best attainable for the present and the immediate future, in the
evolution of child labor legislation.
In the century since the movement for child labor laws began with Sir
Robert Peel’s act, in 1802, effort has been devoted chiefly to placing
about the labor of children restrictions based upon age or school
attendance; and these have been found unsatisfactory by reason of the
willingness of parents to perjure themselves. It is the tendency of the
present to consider the fitness of the child itself for the prospective
occupation. Under the present statute of New York, for instance, a
child must be “of normal development and in sound health” before
receiving the certificate of the local board of health without which it
cannot legally begin to work.
As has been shown, effective legislation involves the child, the
parent, the employer, the officials charged with the duty of enforcing
the statutes, and the community which enacts the laws, provides the
schools for the children when these are prohibited from working,
supports and authorizes the officers who enforce the laws, prescribes
penalties for their violation and assists dependent families in which
children are below the legal age for work. In the long run, the
effectiveness of the laws depends upon the conscience of the community
as a whole far more than upon the parents and the employer taken
together.
With the foregoing reservations and qualifications duly recognized,
the following schedules are believed to outline the substance of the
effective legislation which it seems reasonable to try to secure in the
immediate future. They deal only with the provisions for the child as a
child, taking for granted the provisions for fire-escapes, safe-guards
for machines, toilet facilities and all those things which the child
shares with the adults.
An effective child labor law rests upon certain prohibitions, among
which are the following:
LABOR IS PROHIBITED
(1) for all children under the age of fourteen years,
(2) for all children under sixteen years of age who do not measure
sixty inches and weigh eighty pounds,[5]
(3) for all children under sixteen years of age who cannot read
fluently and write legibly simple sentences in the English language,
(4) for all children under the age of sixteen years, between the
hours of 7 P. M. and 7 A. M., or longer than eight hours in any
twenty-four hours, or longer than forty-eight hours in any week,
(5) for all children under the age of sixteen years in occupations
dangerous to life, limb, health or morals.
THE CHILD
Effective legislation requires that before going to work the child
satisfy a competent officer appointed for the purpose, that it
(1) is fourteen years of age, and
(2) is in good health, and
(3) measures at least sixty inches and weighs eighty pounds, and
(4) is able to read fluently and write legibly simple sentences in
the English language, and
(5) has attended school a full school year during the twelve months
next preceding going to work.
THE PARENT
Effective child-labor legislation requires that the parent
(1) keep the child in school to the age of fourteen years and longer
if the child has not completed its required school work, and
(2) take oath as to the exact age of the child before letting it
begin to work, and
(3) substantiate the oath by producing a transcript of the official
record of the birth of the child, or the record of its baptism, or
some other religious record of the time of the birth of the child,
and must
(4) produce the record of the child’s school attendance, signed by
the principal of the school which the child last attended.
THE EMPLOYER
Effective child-labor legislation requires that the employer before
letting the child begin to work,
(1) obtain and place on file ready for official inspection papers
showing
(_a_) the place and date of birth of the child substantiated by
(_b_) the oath of the parent corroborated by
(_c_) a transcript of the official register of births, or by a
transcript of the record of baptism, or other religious record of
the birth of the child, and by
(_d_) the school record signed by the principal of the school which
the child last attended, and by
(_e_) the statement of the officer of the board of education
designated for the purpose, that he has approved the papers and
examined the child.
(2) After permitting the child to begin to work, the employer
is required to produce the foregoing papers on demand of the
school-attendance officer, the health officer and the factory
inspectors.
(3) In case the child cease to work, the employer must restore to the
child the papers enumerated above.
(4) During the time that the child is at work, the employer must
provide suitable seats, and permit their use so far as the nature of
the work allows; and must
(5) post and keep posted in a conspicuous place, the hours for
beginning work in the morning, and for stopping work in the middle of
the day; the hours for resuming work and for stopping at the close of
the day; and all work done at any time not specified in such posted
notice constitutes a violation of the law. The total number of hours
must not exceed eight in any one day or forty-eight in one week.
THE OFFICIALS
Effective legislation for the protection of children requires that the
officials entrusted with the duty of enforcing it
(1) give their whole time, not less than eight hours of every working
day, to the performance of their duties, making night inspections
whenever this may be necessary to insure that children are not
working during the prohibited hours; and
(2) treat all employers alike, irrespective of political
considerations, of race, religion or power in a community;
(3) prosecute all violations of the law;
(4) keep records complete and intelligible enough to facilitate the
enactment of legislation suitable to the changing conditions of
industry.
THE SCHOOL
The best child-labor law is a compulsory education law covering forty
weeks of the year and requiring the consecutive attendance of all
the children to the age of fourteen years. If is never certain that
children are not at work, if they are out of school. In order to keep
the children, however, it is not enough to compel attendance,--the
schools must be modified and adapted to the needs of the recent
immigrants in the North and of the poor whites in the South, affording
instruction which appeals to the parents as worth having, in lieu of
the wages which the children are forbidden to earn, and appeals to
the children as interesting and attractive. These requirements are so
insufficiently met in the great manufacturing centers of the North,
that truancy is in several of them, at present, an insoluble problem.
No system of child-labor legislation can be regarded as effective which
does not face and deal with these facts.
The evolution of the vacation school and camp and play centers promises
strong reënforcement of the child-labor laws, which are now seriously
weakened by the fact that the long vacation leaves idle upon the
streets children whom employers covet by reason of the low price of
their labor, while parents, greedy for the children’s earnings and
anxious lest the children suffer from the life of the streets, eagerly
seek work for them. Nothing could be worse for the physique of the
school child than being compelled to work during the summer; and the
development of the vacation school and vacation camp alone seems to
promise a satisfactory solution of the problem of the vacation of the
city child of the working class.
THE COMMUNITY
Effective child-labor legislation imposes upon the community many
duties, among which are
(1) maintaining officials--men and women--school-attendance officers,
health officers, and factory inspectors, all of whom need
(_a_) salary and traveling expenses,
(_b_) access at all reasonable times to the places where children
are employed,
(_c_) power to prosecute all violations of the statutes affecting
working children,
(_d_) tenure of office so effectively assured that they need not
fear removal from office in consequence of prosecuting powerful
offenders;
(2) maintaining schools in which to educate the children who are
prohibited from working;
(3) maintaining vital statistics, especially birth records, such that
the real age of native children may be readily ascertained;
(4) maintaining provision for the adequate relief of dependent
families in which the children are not yet of legal age for beginning
work.
More important, however, than the enactment of the foregoing provisions
is the maintenance in the community of a persistent, lively interest
in the enforcement of the child-labor statutes. Without such interest,
judges do not enforce penalties against offending parents and
employers; inspectors become discouraged and demoralized; or faithful
officers are removed because they have no organized backing while some
group of powerful industries clamors that the law is injuring its
interest. Well-meaning employers grow careless, infractions become the
rule, and workingmen form the habit of thinking that laws inimical to
their interest are enforced, while those framed in their interest are
broken with impunity.
Upon parents there presses incessant poverty, urging them to seek
opportunities for wage-earning even for the youngest children; and
upon the employers presses incessant competition, urging them to reduce
the pay-roll by all means fair and foul. No law enforces itself; and no
officials can enforce a law which depends upon them alone. It is only
when they are consciously the agents of the will of the people that
they can make the law really protect the children effectively.
=A United States Commission for Children.=--If the right to childhood
is recognized, it follows that the welfare of the children is a
legitimate interest of the nation, for the right rests upon the future
citizenship of the children. The interest of the nation, as such, has
not hitherto found articulate expression, and it is desirable that it
should do so. It is therefore suggested that there be constituted a
Commission for Children, whose functions should be to correlate, make
available, and interpret the facts concerning the physical, mental and
moral condition and prospects of the children of the United States,
native and immigrant.
The proposed commission might be composed of men and women,
representing different parts of the country, for the purpose of
promoting the vital and social efficiency of the children of the United
States. It should do for the states, cities and smaller communities
what the Department of Agriculture does for the farmers,--make
accessible to them the latest word of science and the latest methods
of applying it. The commission might coöperate with the Bureau of
Education, for instance, in disseminating facts as to the grades in
the public schools from which the children leave, and the age of
the children at the time of leaving, in the different parts of the
country; it might coöperate with the Bureau of Labor in popularizing
the principles upon which child-labor legislation should be further
developed; and with the Census Bureau in focusing attention upon
the fact that in 1900 there were in the Republic 579,947 illiterate
children between the ages of ten and fourteen years, of whom about
510,000 are in thirteen states, and the remaining 70,000 are scattered
throughout the remainder of the United States. For lack of a recognized
national official body devoted to all the interests of the children,
the facts gathered by the three above named departments remain
uncorrelated and largely unused. If they are applied at all, it is by
volunteer organizations which exist in some states and are lacking in
others, and any results obtained, therefore, benefit the children in a
part of the country, but not in the whole country.
The problems suggested as forming, at first, the probable field of work
of the Commission are all vital to the welfare of the Republic. They
are inter-related in such complex ways that it is very difficult to
state them in logical order. The following list is purely tentative and
is framed in the hope that it may suggest constructive criticism.
PROBLEMS
1. Infant Mortality.
2. Registration of Births.
3. Orphanage.
4. Desertion.
5. Illegitimacy.
6. Degeneracy (sub-normal childhood).
7. Delinquency.
8. Offenses against Children.
9. Illiteracy.
10. Child labor.
The imperative need of such a commission becomes apparent as soon as
the first problem, infant mortality, is named. If lobsters or young
salmon become scarce or are in danger of perishing, the United States
Fish Commission takes active steps in the matter. But infant mortality
continues excessive, from generation to generation, in perfectly
well-defined areas;--yet no one organ of the national government is
interested in the matter sufficiently even to gather, collate and
publish consecutive information about this social phenomenon. On
the contrary, infant mortality, however excessive, continues to be
generally regarded as a matter safely left to the local officers whose
incompetence or lack of legal power it proves. Mere constructive
criticism from an authoritative source, consecutively afforded by the
proposed commission, could not fail to have a stimulating effect upon
such local officials.
Orphanage is now generally recognized as a phenomenon social and
permanent. To it is due much pauperism, delinquency and permanent
degeneracy among children. It is a matter of national importance that
continuous investigations should be carried on covering methods of
safeguarding adult life;--insurance, pensions for widows with young
children, adoption of total orphans, asylums and methods of boarding
out children. The children are the future Republic, the orphans no
less than those who have parents; and the maintenance of their vital
efficiency is no less essential than the care of fish, forests and
Indians by the United States Government.
With the development of disease and accidents incident to occupations
the number of fatherless children in the working class increases.
No employers’ liability legislation yet devised has made adequate
provision for the maintenance of surviving little children of workmen
who perish.
Desertion and illegitimacy are phenomena which, from the child’s point
of view, are to be classed with orphanage. It is desirable that methods
of enforcing paternal responsibility should be devised to relieve the
community of the support of children thus cruelly and unnaturally
fatherless.
The allied problems of orphanage, desertion and illegitimacy connect
on the one hand with the protection of life, limb, health and morality
of the adult workers; and on the other with child labor, illiteracy,
degeneracy and delinquency.
While a few cities have established children’s courts devoted to
the decision of cases affecting children, and probation officers
for the care of juvenile delinquents, it remains true that, in by
far the larger part of the country, the stockade or the county jail
is a school of crime for first offenders. On the other hand, the
widely prevalent method of crowding dependent and delinquent children
together in institutions promotes both dependency and delinquency;
while the reckless placing out of children at a distance from their
own original homes has its own serious dangers. The indifference
of local authorities to these subjects of vital importance to the
rising generation is due chiefly to ignorance of better ways. But the
desultory propaganda of volunteer bodies is inadequate to securing
within any calculable time, improvements which might readily and
rapidly be brought about by the dissemination, with method and
continuity, of the needed information by a Commission for Children.
Child labor can never again be regarded as a matter of local interest
in a few states, with cotton mills in the South, and canneries
from Maine to the Pacific, employing children at all hours, in
ever-increasing numbers as the industries develop. The lack of
legislation in one state renders it excessively difficult to establish
protective restrictions upon work in another state having the same
industries;--and the worse inevitably checks progress in the better.
It is, at present, impossible to secure comprehensive, trustworthy,
current information as to the conditions of labor of children in
the different states, except by having recourse to some volunteer
organization which, in turn, secures its facts by correspondence with
the officials of fifty-two states and territories. Moreover, the
publications of private societies cannot assure the continuity of
investigation which a Commission could give. It is believed that the
consecutive publications by a Commission, of the child-labor laws of
the different states in popular form (as the Department of Agriculture
furnishes in popular form information needed by farmers), as rapidly
as the laws are modified, might be the means of securing approximately
uniform legislation in this important field within a few years.
The foregoing list of problems with the comments upon them, are, of
course, mere suggestions of what a Commission would find awaiting it
in the way of investigation and dissemination of information on behalf
of the future citizens of the Republic. Obviously the creation of such
a Commission will mark one more important recognition of the right to
childhood and will register one more ethical gain.
FOOTNOTES:
[3] These figures are found in the Census, 1900, Manufactures, Part II,
States and Territories, p. 987.
[4] _Report of Committee on Relations of Employer and Employee_, 1904,
Boston, pp. 32, 33, 34.
[5] This measure is not now specified in any statute, though it is
implied in the statute of New York, enacted in 1903. Bills specifically
embracing this provision were introduced into the legislatures of Iowa
and Louisiana in 1904.
CHAPTER III
THE RIGHT TO LEISURE
The effort to establish the right to leisure was a distinctive movement
of the nineteenth century, accompanying the development of machinery.
It assumed Protean forms, among others that of Sunday rest, the
Saturday half-holiday, Decoration Day, Labor Day, Lincoln’s Birthday,
Washington’s Birthday, St. Patrick’s Day, Good Friday, and Easter. The
early closing of the stores, wherever accomplished, is one result of
this effort. The prohibition of the work of women and minors at night
was an important aspect of the movement, and the effort on behalf of
child labor legislation is largely directed towards securing fourteen
free years for school and wholesome growth before children enter
upon the life of steady work. In its most virile form, the effort to
establish the right to leisure was known as the ten hours movement, and
later as the eight hours movement.
America having produced no great philanthropic leader devoted to
securing leisure for the young and defenseless workers, no Lord
Shaftesbury, the task of establishing their right went by default
to the trade unions, to whom is due the credit for all child labor
legislation prior to the year 1889. Now, however, the effort has
become national in its scope, enlisting the most diverse advocates.
Mr. Grover Cleveland and other members of the National Child Labor
Committee, and the General Federation of Women’s Clubs, in striving to
stop the work of children at night in manufacture and commerce, are
as truly enlisted in behalf of the right to leisure as are the miners
in Colorado, the butchers in Chicago, and the garment workers in New
York. The National Educational Association, working to prolong the
period of compulsory attendance at school, and the National Congress of
Mothers, with its standing committee on child labor, are pledged to the
same endeavor. To educate the purchasing public to act in considerate
recognition of the right of the clerks to leisure is one of the reasons
for being of the Consumers’ League. However different the methods of
these diverse organizations, their goal is the same,--the establishment
of reasonable daily leisure in the lives of working people.
The Supreme Court of the United States has made plain the way by
sustaining the constitutionality of statutes establishing the working
day of eight hours for persons in the employ of the federal government,
in the employ of states or municipalities under contract, and in the
employ of corporations where the nature of the occupation may be
injurious to health.
The establishment of universal leisure is increasingly recognized as a
social aim, an effort to be participated in by all those who care for
the social welfare, and as a national effort, since, under the pressure
of competition, the conditions prevailing in any industry must be as
nearly uniform as possible, and one part of the country cannot long
maintain itself far in advance of a different part having identical
industries, a truth which finds conspicuous illustration in the
experience of New England suffering under the pressure of competition
of the textile mills of Georgia.
The struggle for the shorter working day is commonly described as the
effort of the laborer to give as little exertion as possible in return
for the pay which he receives and many workingmen passively accept this
statement of the animus of their movement. It is, however, susceptible
of interpretation as the effort of wage-earning people to obtain,
in the form of leisure, a part of their share of the universal gain
arising from the increased productivity of every occupation, and due to
the incessant improvement of machinery.
Obviously the characteristic feature of the industrial life of the
nineteenth century was the unprecedented increase in the output of
all branches of production. Human needs were satisfied as never
before; famine was restricted before the close of the century to
portions of Russia and India, where misgovernment and imperfect means
of transportation together prevented the adequate production and
circulation of foodstuffs. Clothing and fuel of new and abundant kinds
removed the fear of destruction by cold. Shelter for people of all
sorts and conditions underwent transformations undreamed of in previous
centuries. The fundamental ethical question of the century was, in
essence, the equitable distribution of these newly acquired possessions
of the human race.
More precious, perhaps, than any of those enumerated is the immaterial,
imponderable human by-product,--leisure. Once the heritage and
distinctive privilege of a small class in any civilized community,
leisure was produced during the nineteenth century in such abundance
as to become the accepted right of a large proportion of the people.
Yet, by reason of its inequitable distribution, it remained, in the
crude and unsocial form of unemployed time, the bane and sorrow of
large sections of the working-class, who were constrained to devote
generations of organized effort to regulating, equalizing, and
redistributing their working-time and their free time, endeavoring to
transmute accidental, unsocial idleness into regulated and beneficent
daily leisure.
Assured daily leisure is an essential element of healthy living.
Without it childhood is blighted, perverted, deformed; manhood becomes
ignoble and unworthy of citizenship in the Republic. Self-help and
self-education among the wage-earners are as dependent upon daily
leisure as upon daily work. Excessive fatigue precludes the possibility
of well-conducted meetings of classes, lodges, coöperative societies
and all other forms of organized effort for self-improvement. No
experience of residents in settlements in the congested districts of
the great cities is sadder than the disorganization which befalls their
evening clubs and classes when Christmas approaches and the ablest
young people are detained for overtime work, the study and effort of
the other members is disorganized, and failure of the whole undertaking
often follows.
As machinery becomes increasingly automatic, and the work of the
machine-tender reduces itself more completely to watching intently
the wholly monotonous performance of the one part confided to his
care, leisure becomes indispensable for him in order to counteract the
deadening effect upon his mind exercised by his daily work. Instead
of educating the worker, the breadwinning task of to-day too often
stupefies and deforms the mind; and leisure is required to undo the
damage wrought in the working-hours, if the worker is to remain fit for
citizenship in the Republic. Without regular, organized leisure, there
can be no sustained intelligence in the voting constituency.
In those occupations in which long hours of work prevail, the employees
are obliged to live near their place of work, and that congestion is
thus intensified which is one of the more unfortunate features of life
in large manufacturing cities. Shortening the hours of labor gives to
working people a wider range of selection in the location of their
homes, thus benefiting wives and children as well as the operatives
themselves.
Daily assured leisure serves a purpose of the highest social value by
enabling the wage-earner to husband that resource of nervous energy
which is required to continue active working-life after the passing
of youth. In the garment-trades, men are old at forty and women are
superannuated at thirty, largely by reason of the alternations of
overwork and enforced idleness, and the absence of that regularly
recurring sufficient period of rest between the close of one day’s
work and the beginning of the next, which alone permits body and mind
to bear years of continuous work without wearing out. Premature old
age is induced by overwork as effectively as by dissipation; and old
age in the wage-earning class means dependence, if not pauperism. To
assure a regular period of fifteen hours between one day’s work and the
next for young women and girls engaged in manufacturing and commerce
would undoubtedly do as much to prolong their years of self-support and
diminish their period of enforced dependence upon others as any measure
avowedly in the interest of hygiene and public well-being which could
be enacted.
The philanthropic world is all astir on behalf of the crusade against
tuberculosis. Funds are readily forthcoming for the foundation of
sanatoria for the use of working people, especially for young girls
and children. But tuberculosis is promoted by overwork as much as by
any other single cause. To shorten the hours of daily labor, to afford
daily leisure for rest and recreation to young employees during the
years of life in which the susceptibility to infection is greatest,
years which coincide with the term of employment of girls and women
in largest numbers, is quite as clearly a life saving service as to
build and maintain sanatoria. Moreover, the loss of time involved in
recovery from tuberculosis is accompanied by expenses to the patient,
her family and the community which might well all be spared, were the
young worker permitted to escape this enforced idleness by enjoying in
due time a rational measure of daily rest and freedom.
Vice flourishes wherever self-support for honest working-women is
unusually difficult, and the sweating-system is breaking down to
an alarming degree, in New York City, that domestic righteousness
which, for thousands of years, has distinguished the people of Jewish
faith. To establish effective restrictions upon the hours of labor in
the needle-trades would equalize the burden borne by these workers,
spreading work over more days and weeks, granting more daily leisure,
and thus making righteous living easier for tens of thousands of young
working people whose traditions are entirely honorable, but who are now
subjected to a pressure to which all too many victims succumb.
It may be fairly claimed, then, that the establishment of regular daily
leisure contributes to the health, intelligence, morality, lengthened
trade life, freer choice of home surroundings, thrift, self-help and
family life of working people. Granted that not all workers make
equally valuable use of free time, just as members of the leisure class
vary in the uses to which they apply their leisure, it remains true
that, without free time, these benefits are impossible. To be deprived
of leisure is to be deprived of those things which make life worth
living.
Leisure seems to have come to different groups of people in different
ways;--to some automatically without exertion on their part; to
others as the result of long, painful struggle; to many not at all.
The portion of society to which leisure has not come consists, on the
one hand, of the great body of children and young girls in the textile
and other industries in states in which no laws yet define the limit
of their working day and working week; and, on the other hand, of the
mass of unskilled workingwomen as unorganized and defenseless as the
children themselves.
=The Unsought Leisure of Prosperous Women.=--The people to whom leisure
has come unsought, a free gift of the new industrial order, are the
women in prosperous circumstances. Never before in the history of
civilization have women enjoyed leisure comparable to that which now
falls to the lot of those in comfortable circumstances in America. The
modern conveniences of the city or suburban home reduce to a minimum
the unavoidable exertion (except such as is demanded by aseptic
cleanliness enforced by the fear of disease germs in dust and all
that harbors dust!). For the prosperous housekeeper flowing water,
gaslight and electricity, modern facilities for heating and cooking,
foods prepared outside the home, garments bought, whether ready-made
or made to order,--all these contrivances, together with the exodus
of the home-industries, yield to women a leisure which they accept
as an unqualified right. The wives of tens of thousands of business
men and well-paid employees enjoy unquestioningly, and as a matter of
course, a degree of leisure such as formed the exclusive privilege
of a small aristocracy in earlier centuries. The beneficent social
and philanthropic activities of public spirited women and the baneful
epidemic of gambling at cards which has run riot for several years and
shows no tendency to diminish, are twin offspring of this unearned
leisure.
As employers of labor in the home, women have been called upon to share
with their domestic employees some of the new-found leisure, and they
have not always discerned the importance of recognized and regulated
free time at the disposal of the employee as an element in determining
the quality of the “help” available in the labor market which they
frequent. Sunday rest, the Saturday half-holiday, early closing, and
the prohibition or restriction of evening work, have contributed
to make work in manufacture or commerce more attractive to large
classes of young girls in highly developed industrial communities,
than household labor with its indeterminate hours. And where women as
employers have discerned the intimate relation between the industrial
life about them and the domestic life under their own roof, they have
naturally viewed with a critical eye that tendency towards work in
other forms of industry in preference to housework, which presses with
ever increasing effectiveness upon their personal arrangements.
Women in their homes, in the full enjoyment of leisure as a human right
which no one disputes, see from afar and often unsympathetically the
effort of the wage-earners to secure for themselves similar leisure,
either by means of statutory provisions or by trade-agreements.
It requires cultivation of the imagination to enable women thus
fortuitously endowed with leisure to perceive an organic relation
between their own possession of it and the productive activity of
other women, and of children, in the manufacture and distribution of
many things which were formerly prepared within the home; to make
the connection between this free gift of the new industrial order to
themselves and the struggle of the garment-workers, for instance, to
secure by organization and trade agreements, and by statutes, the
assurance that the needle-workers need not work more than eight hours
in one day. The conductor of a railway train has regular “runs” upon
which he can count in advance, and in accordance with which he arranges
his seasons for sleeping, eating and recreation. His wife enjoys the
leisure which has come to her unsought. He can understand the effort of
the garment-workers to maintain their organization in its most militant
form, because he assures the permanence of his own leisure by helping
to sustain his own organization with its trade agreements. But his
wife cannot so readily understand or sympathize with the motive of the
garment-workers, because the leisure which distinguishes her from her
great-grandmother has come to her through no effort of her own, but
automatically by the introduction of mechanical improvements and by
the exodus of the industries from the home. It may be urged that the
leisure of prosperous women is only apparent; that each improvement has
entailed fresh duties of administration; that the standard of living
has been so raised that their time is as fully occupied as it ever
was. From the economic point of view, however, the new occupations are
distinctly of the leisure type,--not of any recognized productive or
distributive type.
To the credit of women of the prosperous class it must be said
that, within recent years, many of them have been making active and
intelligent efforts to establish legal claims to leisure for children
and for women industrially employed. The Saturday half-holiday, the
summer vacation for clerks, the child labor laws, and the prohibition
of work at night for women and children have had no more faithful
advocates among the wage-earners themselves than among members of the
Consumers’ League, the Church Association for Improving the Condition
of Labor and the women’s clubs. Just in proportion as women who enjoy
leisure in their homes come to see how far they owe that enjoyment to
the work of other people, and to recognize the just claims of those
others to a share of leisure, may we reasonably expect that the number
and effectiveness of such organizations will multiply. And it will
appear in the course of the present discussion that the need for such
organizations is an abiding need, aside from the maintenance of the
organizations of the workers themselves.
The share of credit due to these participants in the effort to
establish the right to leisure is the greater because, in their
capacity as housekeepers, they come into contact with precisely that
portion of the working-class whose method of establishing leisure
for themselves appears to be most trying. Gas-fitters, plumbers,
carpenters, upholsterers, paper-hangers, plasterers, painters, and
glaziers have not, on the whole, distinguished themselves, in recent
years, by that sweet reasonableness which might have ingratiated them
and their cause with families whose homes have needed alterations
and repairs. And the ability of thousands of house-mothers to rise
above their personal grievances and advocate a reform the attendant
disadvantages of which they have been made to feel in no gentle manner,
speaks well for the intelligence and the principle of modern women.
=Enforced Idleness is not Leisure.=--In some occupations the nature
of the work to be done involves interruptions which force the workers
to await the resumption of activity; and these interruptions may be
welcome and beneficent, or they may be veritable paths to destruction,
their effect depending upon the circumstances under which the working
people are able to meet them.
Thus the sailor spends weeks on land in enforced idleness through
no choice of his own but because the vessel must load and unload,
or must await the regular day of sailing. Jack ashore affords the
classic example of the workingman harmed by unorganized and, therefore,
unprofitable, if not actively injurious, idle time as contrasted with
regular, organized, beneficent leisure. No stronger argument need be
found for the statutory establishment of daily leisure for employees
in all trades in which that is possible, than the evils entailed upon
sailors by the impossibility of distributing their idle time in ways
wholesome for themselves.
The long leisure of the northern farmer’s winter, recurring and
regularly prepared for, has, without doubt, contributed much to the
general high level of intelligence and character among the native
population of New England and the Northwest. The picture of the boy
Lincoln studying by the light of the fire on the hearth gripped the
imagination of the American people because it appealed to the personal
experience of a multitude to whom the leisure of the hearthstone was
the earliest recollection. The sharpest possible line of demarcation
divides citizens whose experience includes the long country winter from
those city-bred, to whom the seasons mean little more than the change
from the exhaustion of summer heat to a more bracing atmosphere, the
round of their work having no relation to the visible order of nature,
and their leisure being assured them by circumstances unrelated to
the time of year. The farmer’s family, accustomed to work without
ceasing at the harvest, as they rest at length during the winter (both
experiences being dictated by the nature of the work to be done and the
season of the year, over which they have no control), cannot readily
understand why thousands of tailors should strike for months together,
at the height of the season, in the hope of working an hour a day less
throughout the following year.
Yet it is by no means accidental that, in the garment-trades, strikes
habitually have to do with the maintenance of a trade organization,
or with the hours of labor, because the garment-workers, more than
any other wage-earners, suffer the disadvantages both of overwork and
of unemployment. The garment-workers endure the “dull season” because
garments vary with the season and orders are “slack” or “rush” without
reference to the preference of the needle-workers. One part of their
year brings with it overwork such as occurs in no other occupation,
while another entails idleness on the hardest terms known to modern
industry. The tailors’ long struggle to distribute their work over
the longest possible series of weeks, by shortening each working day
to ten, nine, or eight hours is, in essence, a struggle to attain
reasonable leisure in place of deadly haste followed by weeks or months
of corroding idleness.
While the winter leisure of the farmer is made safe by the assured
supplies of food, fuel and shelter prepared in advance for the season’s
need, the annually recurring dull season in the garment-trades is
a period of anxiety and suffering, when the grocer’s bill grows as
large as his good will ventures to permit, and eviction from their
tenement-dwelling is a calamity to be expected and endured by the
garment-workers’ families as the fortune of war. In this there is no
element of wholesome leisure. The words “dull season,” originally
referring to the state of the trade from the employers’ point of view,
describe but faintly the black despair which that season, under the
sweating-system, involves for the workers in the garment-trades.
In the needle-trades half the employees are women, young, non-voting,
temporary members of the body of wage-earners pending marriage or
disability. No part of the industrial army grows so rapidly as the
contingent of young girls between fourteen and twenty years of age;
and no part is so void of initiative for its own welfare, so unfit to
assert or maintain any right. Beginning work at the age of folly, they
readily accept as the regular working day ten hours in twenty-four,
increasing this to any length allowed by the statutes, and working
frequently without extra pay merely under the threat of dismissal
in case of their refusal. Of their own initiative, these young
needle-workers would never secure the half-holiday, a summer vacation
with or without pay, or even the enforcement of the legal restriction
upon their regular working time. They are a perpetual hindrance to the
efforts of the men who work with them to secure stable employment and
reasonable leisure. Overwork seems to come to these girls as blindly as
leisure has befallen the women in the well-to-do households.
In the needle-trades, the effectual establishment of the legal working
day and working week serves, wherever this has been accomplished, as
for instance, in Massachusetts, to mitigate both the enforced overwork
and the enforced idleness which characterizes those trades when left
to the free play of industrial forces. Where the working time is
effectively limited, preparations are made systematically, in advance
of the height of the season, for meeting the coming pressure. Space
and machinery are provided, and extra hands are trained, by preparing
stockwork, for the finer work to be demanded of them later. Thus some
of the unemployed are temporarily absorbed into the regular industrial
army, and the contrast between the extremes of the seasons is mitigated.
It is evident upon close acquaintance that in the garment-trades the
injurious differences of season are only in part due to the conditions
inherent in the trades themselves. They are not like the midwinter
cold and midsummer harvest heat in the experience of the farmer. They
are far more subject to control than the managers of the industry have
ever been willing to admit. Moreover, the general purchasing public
has vastly more power of initiative, control and restraint than it has
ever been aware of, by means of the placing of “rush” orders, on the
one hand, and of voluntarily regulating the times of its buying on
the other. This has already been indicated in the matter of Christmas
shopping and its bearing upon the cruel overwork of children at that
season. The garment workers are not so obviously present as the
children in the stores, and it requires, therefore, more sympathetic
imagination to enable the shopping public to make the connection
between the excessive exertion which alternates with ruinous idleness
of the machine workers, and its own heedless crowding of the shopping
season into a few weeks in the spring and fall.
=Increased Speed Calls for Leisure.=--In the capacity of inspector for
the National Consumers’ League it has been the fortune of the writer
to visit and inspect a large number of factories in the stitched
muslin underwear trade during the past five years. In the course of
that time there has occurred a development of machinery so significant
in its consequences as to seem worth describing somewhat at length
as a concrete illustration of the process which is discussed more
abstractly throughout the present chapter. In all the best factories
within this trade the speed of the sewing-machines has been increased
so that they set, in 1905, twice as many stitches in a minute as in
1899. Machines which formerly carried one needle now carry from two
to ten, sewing parallel seams (for bones in waists, or for tucks,
or merely for decorative stitching). Thus a girl using one of these
machines is now responsible for twice as many stitches at the least and
for twenty times as many stitches at most, as in 1899. Some girls are
not capable of the sustained speed involved in this improvement, and
are no longer eligible for this occupation. Those who continue in the
trade are required to feed twice as many garments to the machine as
were required five years ago. The strain upon their eyes is, however,
far more than twice what it was before the improvement. In the case
of machines carrying multiple needles this is obvious; but it is true
of the single-needle machines also. It is the duty of the operator to
watch the needle so intently as to discern the irregularity caused by a
broken thread or broken needle, and to stop the machinery by pressing
an electric button before any threads are cut by the broken needle,
or any stitches of the seam are omitted because of the broken thread.
Now, when the needle set twenty-two hundred stitches a minute, as was
the case in 1899, the writer; whose eyes are unusually keen, could
see the needle when the machine was in motion. At the present speed,
the writer, whose eyes have remained unimpaired, is wholly unable to
see the needle, discerning merely the steady gleam of light where it
is in motion. To meet this difficulty, which occurs regularly in the
case of the operatives, it is now the custom to suspend an electric
light directly above the machine, so that a ray strikes the needle.
The strain upon the eyes of the operators is almost intolerable, and a
further winnowing-out of the women eligible for this occupation follows
the introduction of the present method of lighting.
It is reasonable to inquire what benefit accrues to a machine operator
who completes twice as much work in 1905 as in 1899, and the writer has
made this inquiry whenever opportunity has offered. On the whole, it
appears that there has been no proportionate gain for the operator. If
all the gain that is made by the improvement in the machines went to
the operators in the form of increased wages, it is doubtful whether
it would be compensation for the additional strain upon their eyes
and nerves. But no such share of gain falls to them. Their wages are
calculated upon the same basis as in 1899, namely, that employees of
the required speed and skill can be obtained in the required number
for six dollars a week, irrespective of their output of work. In
conversation with employers the writer is assured, from time to time,
that piecework prices are regularly calculated to afford a total of
six dollars a week for skilled workers, the stock phrase being: “If
a girl cannot earn six dollars a week at machine work after she has
been doing it from six weeks to three months, she is not adapted to
the work, and it is better to put another girl at her machine.” On
the part of the girls the statement is very generally made that, in
places in which the supply of help is abundant, the proportion of girls
receiving less than six dollars is kept large by constantly changing
hands, dismissing those whose wages are growing higher with increasing
skill, and taking on beginners. Combined with this constant changing
goes a frequent rearrangement of piecework prices, such that only a
small minority of the girls in a factory ever rise above the dead level
of six dollars a week, the same sum that was paid in 1899 for half the
work now done.
One skilled worker who left a factory for four years and returned to
the same machine which she had left, found it speeded up to double
its former capacity. Her work was doubled, but her wages increased
only from six dollars a week to seven, though she was one of the most
skilled persons in her trade, an experienced, strong, willing operator.
This girl was asked who, in her opinion, profited by the doubling of
the output of her machine. In reply she said: “I get a dollar a week
more. The company makes something out of the improvement, or they would
not have made it. But there have been so many cuts in prices that the
company don’t get as much as you’d think for doubling the speed of the
machines. I guess the people that buy the garments must get most of the
difference; they can get so many more garments for the same money.”
There is no doubt that this sewing girl was entirely correct in her
estimate of the effects of doubling her work. The purchaser, in the
long run, profits by every improvement in machinery and in the speed of
the workers. But the girls who stitch underwear are not only working
the same number of hours as in 1899; they are wearing themselves out
at a rate of speed such that the term of their whole working-life must
inevitably be greatly shortened. The nervous energy required from
day to day is more than can be supplied by the free time between one
day’s work and the next. A phrase in which they commonly describe the
experience of girls who have dropped out of the trade tells the whole
story: “She got too slow,--she couldn’t keep up with her machine any
longer.”
There is no immediate prospect of any material improvement in the
money wages paid to operators in this trade; for the employers have at
command, not only tenement-house workers and institutions maintained
out of the public funds and, therefore, willing to do sewing for merely
nominal compensation; they have also the pupils of the many charitable
and reformatory schools which persist in preparing every available
girl for this most undesirable of all skilled occupations. Since the
wages of the sewing machine operators are determined, not primarily
by the amount of their output, but by many other considerations (the
pressure of the tenement-house workers, the institution workers, and
the recruits in the trade sent out from the institutions, etc.), there
seems to be no need to fear that they would lose in wages if their
hours of labor were reduced by the enactment of a statute restricting
their working time to eight hours in one day and forty-eight in one
week. In the interest of their health this change appears to be
indispensably necessary. It has been, however, impossible for them to
make any permanent improvement in the conditions of their employment
by unaided effort of their own. There is no inclination visible on the
part of employers to reduce the hours of work. On the contrary, the
manufacture of stitched white muslin underwear has become as completely
a season trade as the preparation of Christmas tree decorations or
Easter bonnets. Meanwhile, the number of years during which a girl can
continue to earn a living at a sewing machine diminishes with every
improvement in her machine.
=Methods of Establishing the Right to Leisure.=--By the education of
public opinion something has been accomplished towards establishing
leisure in certain occupations. Thus an appeal has of late been made,
with promise of increasing success, to the more kind-hearted and
conscientious among the stockholders of Southern cotton-mills to vote
their stock in ways calculated to obtain more humane hours of labor
for the women and children employed in those mills. The hours of labor
of the clerks and cash children in the stores of many cities have been
improved in consequence of the efforts of the Consumers’ Leagues in
some places, and of the Retail Clerks’ Protective Associations in
others, to induce the shopping public to exercise consideration of the
employees in arranging the hours of shopping.
The cigar-trade has long enjoyed the benefits of the short working
day by reason of the relatively successful effort of the cigarmakers
to apply in practical form the principle which all trade unionists
acknowledge, and upon which thousands of them conscientiously act.
Millions of dollars have been spent in advertising their label; cigars
bearing it are made only in shops in which the working day is limited
to eight hours; and working men of all trades have taken the trouble
to give the preference in buying the cigars thus recommended. Here,
therefore, the establishment of leisure for the workers has been
accomplished by the effort of the workers themselves. The limitations
inherent in this method appear, however, when certain large employers,
selling cigars to customers not interested in the subject, employ young
girls who are not part of any organization, and can be induced to
work as long as the law allows. It is an interesting and significant
fact that the organizations mentioned as using this method are among
the most persistent advocates of legislation restricting the hours
of labor, acting on the principle that not one but all methods of
protecting the workers in their right to leisure must be followed,
and taught by experience how far more effective is their effort when
directed towards the enforcement of statutes than when confined to
persuasion alone.
CHAPTER IV
JUDICIAL INTERPRETATION OF THE RIGHT TO LEISURE
The right to leisure has long been striven for by means of trade
agreements between employers and employees, and of statutes, state and
federal. The statutes are many and diverse, but those with which the
present discussion is concerned are of three kinds:
Statutes stipulating the hours of work of public servants, as letter
carriers and printers in the government printing office;
Statutes restricting the hours of labor of women and children;
Statutes which are now for the first time upheld by the courts,
restricting, in certain occupations, in the interest of the public
health, the hours of labor of adult male employees working for
corporations or individual employers.
Until it has been sustained by the Supreme Court of the United
States, a statute is merely a trial draft, the enactment of which is
but the first step in its development into valid law. In discussing
the gains which have been made in the direction of establishing the
right to leisure, it is, therefore, necessary to consider the leading
cases which determine the line of progress.[6] Two cases decided by
state courts of last resort are still effective in preventing the
enjoyment of the right to leisure by wage-earners in those states,
although the Supreme Court of the United States has, in regard to the
subject matter of each decision, subsequently pronounced in favor of
the constitutionality of the statutory right; and it is, therefore,
reasonable to believe that, in the course of time, the state courts
will reverse their present positions. These are the cases of Ritchie
_vs._ the People (Supreme Court of Illinois, March 5, 1895), and the
People _vs._ the Orange County Road Construction Company (April 25,
1903, Court of Appeals of New York).
=The Right to Leisure Accorded to Public Servants.=--The government of
the United States, in the year 1892, recognized the right to leisure by
limiting to eight hours in one day the working time of laborers in its
employment.
Since that time it has paid extra for overtime work. The same right is
recognized for many thousand employees directly engaged in the service
of states and municipalities. In all these cases the hours of labor are
restricted by statute, state or federal, enacted through the exertions
of the employees themselves or of men engaged in the same or kindred
work.
No claim has been made that it would necessarily injure the health of
the adult employees engaged in these occupations to work more than
eight hours in a day. It is, however, their preference to work no
longer than that. They are politically powerful enough to establish
their preference by procuring legislation; and in the case of the
printers, they have established the right before the Supreme Court
of the United States. The work of the nation, the states and the
municipalities appears to be done, on the whole, satisfactorily to the
people and to the employees. Such scandals as have arisen in the public
service seem to have had no relation to the daily work of the rank and
file.
It is worthy of note that these employees are engaged at work in
which they are subject to no pressure of competition from women and
children. The moderate hours of work doubtless explain, in part at
least, the eagerness of men to secure public employment, even where
defective civil service laws make promotion excessively difficult and
give the public servant scant hope of any considerable increase in his
remuneration.
Convinced of the advantage derived by men in the direct employ of
the various governments, federal, state and municipal, from the
short working day prescribed by law, many trade organizations have
long and persistently striven to secure from Congress and from
state legislatures, laws requiring that contractors employed by the
government shall be bound by the terms of their contracts to limit
the day’s work to eight hours. The workingmen insist that work for a
government contractor is indirectly work for the government, and should
be performed upon the same terms, assuring to the worker the same
advantages. As government contracts ramify into ever-increasing series
of industries, such statutes would establish the usage of the shorter
working day to an extent and in directions little foreseen by those who
are not personally interested in the subject.
The unimagined ramifications of the work of the United States
Government done under contract may be indicated by the fact that the
writer has seen letter pouches, for the use of the United States
railway mail service, sewed by small boys detained in a reformatory
institution for young children carried on by a religious sect, at
the cost of the treasury of the city of New York. The government
contract had been awarded to a manufacturer who had farmed out a part
of it under the sweating-system, to be executed by child labor, under
conditions deemed wholly inadmissible by enlightened modern opinion.
This ramification of government contract work into the sewing trades,
the sweating-system, and the perversion of child-saving philanthropy is
cited merely to intimate how far reaching, in its potential beneficent
effects, is the effort of the workingmen to secure statutory provision
that, in all contracts for government work, the right to leisure shall
be recognized by a stipulation binding the contractor to the working
day of eight hours.
The effort thus to secure statutory recognition of their right to
daily leisure when employed indirectly by the government through
contractors, is made as vigorously by men in industries in which
trade agreements are available as in other trades. From their long,
persistent effort for this legislation, it appears that they recognize
the desirability of statutory recognition of the right, as contrasted
with the conquest of leisure, in each individual case, by means of
trade agreements.
Viewed as an infringement of his freedom of contract, the workingman’s
eagerness for statutory restriction upon his hours of labor may seem
to be self-stultification. But viewed as an effort to establish a
legal claim to a settled modicum of daily leisure, it becomes at
least intelligible. There may well have been a time when a usury law
seemed to inflict hardship upon a borrower eager to pay any price for
an urgently needed loan. Yet it was the debtor class who desired and
ultimately obtained the enactment of usury laws. They wished to be
rid of their freedom to contract for lifelong indebtedness, as the
wage-earner to-day wishes to be rid of his present freedom to bargain
away what he regards as an undue share of his twenty-four hours, and
experience has demonstrated the correctness of the instinct which
guided the effort of the debtors.
Every year the body of workingmen voters pledged to secure from the
various governments legislation prescribing the so-called “eight hour
clause” in all contracts, grows larger and more insistent; and every
year the industrial territory involved in such contracts enlarges
its boundaries and becomes more important. The recent irrigation
undertakings of the United States in the arid regions sufficiently
illustrate the rapidly increasing scope of these contracts.
Although Congress is far behind the governments of England and Canada
in guaranteeing to its indirect employees, working for it through
contractors, the same leisure which it has long granted to its direct
employees, the states and cities are going rapidly forward and the
Supreme Court of the United States, in October, 1903, in the case of
Atkins _vs._ the People, sustained the right of a state to provide by
statute for the working day of eight hours for employees of the state
itself, and of counties and municipalities within its borders, whether
the work be done directly, or indirectly through contractors.
When a majority of the states, acting under this decision, have adopted
statutes providing for the working day of eight hours for employees
working for the public indirectly through contractors, it is reasonable
to suppose that Congress will enact the bill which for many years has
been presented to it at every session, providing for similar protection
for workingmen in the employ of contractors working for the federal
government.
=The Right to Leisure of Wage-Earning Women and Children.=--While
striving to establish for themselves the right to daily leisure by
trade agreements and by statutes, the wage-earning voters have never
relaxed their efforts to establish the same right for women and
children in the employ of private individuals and corporations. And
in this effort they have found it easier to use legislative methods,
because the courts have been, on the whole, more inclined to permit the
exercise of the police power of the legislatures than in the case of
adult men.
Statutes restricting the hours of labor of women and children, while
enacted in the interest of health and morality, have often been urged
by persons animated by two other motives as well. In many cases, men
who saw their own occupations threatened by unwelcome competitors,
demanded restrictions upon the hours of work of those competitors for
the purpose of rendering women less desirable as employees. In other
cases, men who wished reduced hours of work for themselves, which the
courts denied them, obtained the desired statutory reduction by the
indirect method of restrictions upon the hours of labor of the women
and children whose work interlocked with their own. But whatever the
motive of the enactment, the real gain has always been leisure for all
concerned; and the advantages to employers derivable from the work of
women and children have regularly outweighed any inconvenience arising
from the shortened working week.
Before 1889 the effort for the enactment of statutes regulating the
hours of labor of women was confined to the trade unions, who had
struggles of their own, to protect their own interests, and who can
scarcely be blamed if they fought the battles for leisure for women and
children first and most effectively in fields of industry where they
themselves reaped rewards from their occasional successes, _i. e._, in
occupations in which the work of women and children interlocked with
their own.
The sum total of progress made is deplorably slight. While the hours
of labor of children under the age of sixteen years are restricted
to eight in one day and forty-eight in one week in Utah, Colorado,
Montana, Illinois and Vermont; to nine in one day and fifty-four in
one week in New York and Delaware and to ten in one day and fifty-five
in one week in New Jersey; yet for girls between the ages of sixteen
and twenty-four years whose numbers are increasing more rapidly than
any other part of the working class, there are neither effective
trade agreements nor laws prescribing anything more advanced than the
working-day of ten hours and the working-week of fifty-eight or sixty
hours. Moreover, the existing inadequate statutes tend to laxity of
enforcement and to exceptions so important as to nullify the intent of
the law in many cases.
Obviously most progress in establishing the right to leisure has been
made by men who are both skilled workers and also voters (printers in
the government offices, etc.), and the least progress by children ten
years old in Georgia and Mississippi. We commonly assume that, under
the processes of evolution, industrial conditions improve from decade
to decade. But in the matter of a wholesome distribution of free time,
it is clear that gains have been made, hitherto, according to the power
of the working people to assert their right. How else can we account
for the fact that children of ten years of age still work eleven hours
a day in the cotton mills of Georgia? The reason for their overwork is
obviously to be sought in their powerlessness to organize for their own
defense, in the weakness of the organizations of men in industries in
which women and children compete, as they do in the textile trades; and
in that apathy of public opinion which permits stockholders living in
states in which relatively humane conditions have long prevailed, to
derive incomes from corporations in states in which children and young
girls are still exploited without restriction.
Leisure never comes to young girls and children employed in manufacture
and commerce through efforts of their own, or upon the initiative
of their employers, because under the demand for dividends and the
pressure of competition, the better employer is constrained by the
meaner or the industrially weaker. On a large scale this is illustrated
by the alleged present inability of manufacturers in Massachusetts to
shorten the working day and the working week in the textile trades, by
reason of the pressure of their Southern competitors. For the younger
workers, therefore, leisure is gained, with no help from themselves,
either because their work interlocks with that of men working under
trade agreements; or because statutes have been enacted for their
benefit and the organization of men in their trade is powerful and
intelligent enough to obtain effective enforcement of the laws; or
because there is intervention on behalf of the young employees by
philanthropic bodies, such as the Consumers’ League and the various
child-labor committees and working-women’s societies, through which the
public at large intervene in the interest of health and morality.
Taken altogether, the progress made on behalf of women and children,
so slight, and so diverse in the different states, indicates how
discouragingly far the right to leisure still is from any universal
recognition, and how dependent upon militant action of the workers
themselves.
It was not until after 1870 that Massachusetts, the Commonwealth which
for thirty years stood in advance of all the states of the Republic
in safe-guarding the health, welfare and rights of wage-earning women
and children, enacted a statute prohibiting the employment of women
and children in manufacture longer than ten hours in one day and sixty
hours in one week, and made provision for inspectors to enforce the
law. In 1876 this statute was pronounced constitutional by the Supreme
Court of Massachusetts in the case of the People _vs._ the Hamilton
Manufacturing Company (120 Mass., 385, 1876), in which it was held
that the legislature had full power to restrict by statute the hours
of labor of adult women employed in factories, under the terms of
Chapter II, Section iv, of the constitution of Massachusetts: “Full
power and authority are hereby given to the said General Court, from
time to time, to make, ordain and establish all manner of wholesome and
reasonable laws, ordinances, statutes, directions, and instructions,
either with or without penalties; so as the same be not repugnant to
this constitution, as they shall judge to be for the good and welfare
of the Commonwealth, and for the governing thereof.”
Many states have since followed the example of Massachusetts, but none
has gone beyond it. Indeed, so far as is known to the writer, no other
state has followed the important improvements incorporated in the
Massachusetts statute since its establishment in 1876 by the decision
of the Supreme Court. By subsequent amendments the hours of labor of
women engaged in manufacture were reduced to fifty-eight in one week,
and the same restriction extended, in 1900, to the hours of labor of
women engaged in commerce, although an exemption covering the month
of December temporarily weakened this extension compared with the
protection afforded to women engaged in manufacture. In 1904, however,
the exemption covering work in December was repealed, and women now
stand on the same footing in regard to daily leisure, whether they are
employed in manufacture or in commerce.
New York waited until 1886 before restricting by statute the hours of
labor of women and children; and even then provided only for women
under the age of twenty-one years, waiting until 1899, after the
promulgation of the decision of the United States Supreme Court in
the case of Holden _vs._ Hardy, February, 1898, before extending the
restriction to women of all ages engaged in manufacture.
The imperfect and unequal recognition of the right to leisure is well
illustrated by the present statutory provision of New York. There
children under the age of sixteen years cannot legally be employed
longer than nine hours in one day and fifty-four hours in one week.
For children engaged in manufacture, the working day must end at nine
o’clock at night, but children engaged in commerce may work until ten.
Women of all ages are nominally prohibited from working longer in
manufacture than ten hours in one day and sixty hours in one week, but
this prohibition is rendered virtually nugatory by the words “except
for the purpose of making a shorter working day on the last day of the
week,” in consequence of which the factory inspectors find the utmost
difficulty in proving any given violation of the whole provision.
Women employed in commerce enjoy, however, not even this defective
statutory provision after reaching the age of twenty-one years. And for
girls between the ages of sixteen and twenty-one years it is expressly
permitted that they may work, without limitation of the length of
the working day, from December 15 to January 1, _i. e._, during the
fortnight in all the year in which they are most in need of a definite
prohibition of all work after six o’clock at night.
Here are four divisions of the protected workers, all having different
provisions as to their degree of statutory leisure: Children under
sixteen years of age in manufacture, and children of the same age in
commerce; women under the age of twenty-one years in commerce, and
women of all ages in manufacture. And each of the two latter classes is
subject to exceptions in the statute which very seriously diminish its
face value.
=The Illinois Decision of 1895; (Ritchie _vs._ the People.)=--In 1893
the legislature of Illinois enacted a statute restricting the work of
women and girls engaged in manufacture to eight hours in one day and
forty-eight hours in one week, and provided for the enforcement of the
law by inspectors whose duty it was to prosecute all violations of the
statute. But in May, 1895, this law was pronounced unconstitutional by
the Supreme Court of Illinois, and since that date there has been no
restriction whatever upon the hours of labor of women in that state.
Because it is still in force in Illinois, depriving thousands of women
and young girls of all statutory protection in the enjoyment of their
right to daily leisure, this decision is still of importance, and is,
therefore, printed in the appendix.
At the time of the rendering of the Illinois decision, the writer, as
the responsible head of the state department of factory inspection,
charged with the duty of enforcing the eight hours law, incorporated
in the next following annual report of the department some comments
upon the decision, which have remained buried in the obscurity of an
official report. Time has, however, verified in so hope-inspiring a
manner some of the statements there made that it seems worth while to
reproduce them after the lapse of ten years:
“In annulling this section, the ground taken by the court, namely that
regulation of the hours of labor is in excess of the powers of the
legislature is of curious interest in contrast with the established
policy of those states and nations in which this power to regulate is
no longer in question, where the principle is accepted and acted upon
that the care of the health of the factory employee is a legitimate
subject of legislation.
“In France, Germany and every other continental country, including
Russia, and in the more progressive states of this country, legislative
regulation of the hours of labor has been found an effective measure
for the protection of the health of women and children employed in
factories and workshops. In England, the principle of the regulation
of the hours of work for women and children has been established for
more than two generations and the regeneration of the working-class
in that country, from the degradation in which it was sunk in 1844,
is generally attributed to the factory acts, and especially to this
important feature of them.
“In contrast with the beneficent policy which has been followed during
the past half-century in that greatest manufacturing country of the
world, the Supreme Court of Illinois, in the year 1895, has rendered
its decision upon grounds which were advanced and rejected in the
English parliament in the fifties.
“The new feature introduced into the body of American legal precedent
by this decision is the assumption that it is not exclusively a matter
of the constitution of Illinois. The state constitution could be
altered, so that thereafter the hours of labor could be regulated by
legislative enactment, as in the older industrial communities. The
court, however, makes the fourteenth amendment to the Constitution
of the United States the basis of its decision. If this position
were correct, all effort for legislative restriction of the working
day would be wasted, since there is no prospect of change in the
Constitution of the United States.
“Happily the weight of precedent is not on the side of the Illinois
court; the precedents are in the other direction. In Massachusetts,
for twenty years past, the principle has been established by the
Supreme Court that the hours of labor of women and children may be
regulated by statute. The Massachusetts precedent has had such weight
that no case has been carried to the Court of Appeals in New York. The
constitutionality of its ten hours law, though suits have been brought
under it, has never been disputed.
“It remained for the Supreme Court of Illinois to discover that the
amendment to the Constitution of the United States passed for the
purpose of guaranteeing the negro from oppression, has become an
insuperable obstacle to the protection of women and children. Nor is it
reasonable to suppose that this unique interpretation of the fourteenth
amendment will be permanently maintained, even in Illinois.
“To the working people of the state, the action of the Supreme Court
is a calamity, for it must never be forgotten, in discussing the
legislative restriction of the hours of labor, that this is not a
question between the day of eight hours and the day of ten. In practise
the question is between an unlimited working day and a day restricted
by statute to a reasonable number of hours. The court in this decision
holds that _any_ restriction of hours of labor of adults is beyond the
power of the legislature.
“The immediate result of the decision has been the reëstablishment of
the unlimited working day for thousands of women and children in the
factories and workshops of Illinois.
“When it is remembered that the annual increase in the number of women
and girls employed in factories and workshops in this state is counted
by thousands; that there are 1,181 little girls in the sweat-shops of
Chicago; that inspectors of this department have found at work during
the present year more than 30,000 women, of whom more than 7,000
were in sweat-shops, it is clear that the question of legislative
restriction of the hours of their labor is not finally settled when
the state Supreme Court has passed upon it in disregard of the body of
American judicial precedents, in opposition to the experience of all
civilized countries, and to the injury of the large and growing number
of women and children engaged in manufacture within this state.
“The judicial mind has not kept pace with the strides of industrial
development, and this decision shows that Illinois is, in law in 1895,
what it was in fact when the state constitution was adopted in 1870--an
agricultural state. What then can be done for the weakest and most
defenseless bread-winners in the state?
“The outlook is far from hopeless. Even under the decision as it
stands, farther legislative protection _for minors_ is not impossible.
As to adults, the court has reversed decisions upon points of far less
urgency than this.
“It may be that the court is as advanced as that portion of the
community which is not yet thoroughly aware that Illinois is the third
great manufacturing state of the Union. When, however, the observations
made during a few more years shall have convinced the medical
profession, the philanthropists, and the educators, as experience has
already convinced the factory employees themselves, that it is a matter
of life and death to the young people who form so large a proportion of
their numbers, to have a working day of reasonable length guaranteed by
law, it will be found possible to rescue the fourteenth amendment to
the Constitution of the United States from the perverted interpretation
upon which this decision rests. We may hope that Ritchie _vs._ the
People will then be added to the reversed decisions.”
Despite the suggestion of the court that the hours of labor of minors
could be restricted by statute, the paralyzing effect of the whole
decision was such that for eight years it was impossible to obtain even
a restriction upon the work of _little boys at night_ in glass-works.
It was not until 1903, ten years after the passage of the first
eight hours law, that a child-labor law was enacted prohibiting the
employment of children under the age of sixteen years after seven
o’clock at night, or longer than eight hours in one day. Thus from
1895 to 1903 girls fourteen years of age could be legally employed
throughout the night, or for any number of consecutive hours that might
suit the convenience of their employers. And at the present time,
both boys and girls over the age of sixteen years have no statutory
right to any daily leisure in Illinois, but may be called upon to work
twenty-four hours at a stretch if an employer should care to make such
a demand. Instances have come to the knowledge of the writer in which
corporations having branches in New York and Illinois obeyed the law
of New York and employed no women or girls after nine o’clock at night
in that state, while, under the Illinois decision, they required young
girls to work all night in the Illinois factory. Indeed, young girls
are regularly and constantly required to work at night in Chicago.
During the years since that belated and anti-social decision, Illinois
has been the scene of a large number of strikes, in which the length
of the working-day was either the only point or the principal point
at issue. Had the working day of women and girls remained legally
determined throughout the period, according to the enlightened
intention of the legislature of 1893, it would have been eliminated as
a cause of discord in all those cases in which only women and girls
were involved and in all those other cases in which the hours of labor
of men are determined by the length of the working day of the women and
girls whose work interlocks with their own. The number and seriousness
of the strikes since 1895, in Illinois, would in all probability
have been thus materially diminished, together with the lawlessness
incident to them, since an ever present cause of discord would have
been eliminated by the statutory recognition of a right.
Since 1876 the hours of labor of women engaged in manufacture have been
determined by statute in Massachusetts, and strikes turning upon this
point have been impossible. In Illinois, since 1895, the hours of labor
of women and girls have been unlimited, by reason of the decision of
the Supreme Court in the case of Ritchie _vs._ the People. Since the
Supreme Court of Illinois interfered with, and rendered unavailing, the
effort of the legislature of that state to eliminate a cause of discord
by establishing a statutory right, it seems reasonable to attribute to
the court the ultimate responsibility for the lawlessness of men and
women who have striven to establish by extra-legal or illegal methods
that right to leisure which the courts of Massachusetts and of the
United States affirm, but the Supreme Court of Illinois denies.
The justice who wrote the Illinois decision is dead. A judicial
election has been held and several of his reactionary colleagues have
been replaced by men of more modern mind. But more important than these
changes of personnel is the prospective effect of the decision of the
Supreme Court of the United States in the case of Holden _vs._ Hardy,
as will appear from the discussion of that case.
=The Right to Leisure of Workingmen.=--The most important judicial
decision affecting the right to leisure is that of the Supreme Court
of the United States in the case of Holden _vs._ Hardy, promulgated
February 28, 1898, and commonly known as the Utah Eight Hours Case.
This decision confirms the hope that the right to leisure may be
established and extended by constitutional methods, legislatures and
courts working harmoniously to promote the health and welfare of
wage-earning people. By its reasonable and affirmative construction and
definition of the intent and scope of the fourteenth amendment to the
Constitution of the United States, this decision opened the way for a
peaceful, though slow and laborious evolution of the beneficent powers
of the individual states, and for reasonable and wholesome hours of
work and of daily leisure. The fact that it immediately secured to the
employees in certain industries in Utah the benefits of a statutory
confirmation of their right to daily leisure, is not the vital point in
this decision. Far more important to the nation and the future is the
fact that it tended to rehabilitate the states in the performance of
some of their most weighty functions, and reaffirmed principles which,
formerly accepted as self-evident, had in recent years been not only
disputed but abrogated by state supreme courts in a long series of
decisions.
In all great industrial countries it has long been recognized that
manufacture and commerce require equitable conditions; that legislative
requirements of whatever kind, if imposed upon one, must be imposed
upon all alike; that discrimination must be avoided, not alone because
it is unjust, but because it is fatal. Hence legislation regulating the
conditions of employment is usually embodied in measures of national
scope, the execution alone being left to the local authorities, while
broad fundamental provisions are uniform for one industry throughout
an empire, a kingdom or republic. In America alone, the constitution
leaves, in effect, to the states the regulation of the relation of
employees to their work, and of the conditions of that work,--except
as employees who come under the interstate commerce act receive the
benefit of certain safe-guards prescribed by that act.
When, therefore, state Supreme Courts take the position held by the
Illinois court (Ritchie _vs._ the People), annulling the Illinois eight
hours law, viz.: that, in consequence of the fourteenth amendment
to the Constitution of the United States, the individual states are
prohibited from interfering with the hours of labor, commerce and
manufacture in the states affected by such decisions are, _pro tanto_,
worse off than in other states and countries; for they are left without
either state or national provision for that uniformity of relations
which is one of their most vital interests. This construction of the
fourteenth amendment, adopted and disastrously applied, in recent
years, by the Supreme Courts of Illinois and several other states, has
exercised a doubly injurious influence. It has minimized the power and
efficiency of the states, and it has deprived employees of a protection
which they could derive from no other source.
Incalculable importance attaches to this decision of the Supreme
Court of the United States, because it reproves and, in the end, must
effectively check that blighting tendency of the state Supreme Courts.
But for the unwholesome decisions of state courts arbitrarily placing
limitations upon the powers of the states and reducing to lawlessness,
for want of any legislative body recognized by the state courts as
competent to deal with them, the relations of employees to their
work, much of the decision under discussion might seem to be mere
truism. Under existing conditions, however, it offers the curious
and instructive spectacle of the Supreme Court of the United States
assigning to the states duties and powers which the Supreme Courts of
those states had previously declared not to be theirs.
In 1895 the Supreme Court of Illinois decided that the state cannot
restrict by legislation the hours of labor of any adult. About the
same time the legislature of Colorado inquired of the Supreme Court of
Colorado whether a proposed statute limiting to eight hours the working
day of laborers and mechanics would be constitutional; or whether it
could be rendered constitutional by an amendment providing that it
should apply only to mines and factories. The Supreme Court of Colorado
replied that both proposals “would be unconstitutional, because they
violate the right of both parties to make their own contracts--a right
guaranteed by the fourteenth amendment to the Constitution of the
United States.” In 1894 the Supreme Court of Nebraska had decided that
“an act of the legislature of that state providing that eight hours
should constitute a legal day’s work for all classes of mechanics,
servants, and laborers throughout the state, excepting those engaged
in farming and domestic labor, and making violation of its provisions a
misdemeanor, was unconstitutional, and, therefore, void both as special
legislation and as attempting to prevent persons legally competent to
enter into contracts, from making their own contracts.”
Undeterred by these three recent and discouraging decisions of
western courts, the people of Utah fell back upon the precedent of
Massachusetts (People _vs._ Hamilton Manufacturing Company, 1876),
affirming that the legislature of Massachusetts had power to restrict
by statute the hours of labor of adult women employed in factories.
The Illinois court, in its decision annulling the Illinois eight hours
law, had taken occasion to refer to the Massachusetts decision, stating
that, “it is not in line with the current of authority,” and explaining
that it could be arrived at only by reason of the “large discretion
vested in the legislative branch of the government” by the constitution
of the state.
From the days of the sweeping provision of the constitution of
Massachusetts which took effect October, 1780, and has remained
in force to the present day, the tendency has been to reduce the
powers of the legislatures, both by restrictions inserted in the
state constitutions and by the interpretation placed upon those
constitutions by the state courts. Strongest of all had been the use of
the fourteenth amendment by the state courts. This tendency to reduce
legislative power in the states to zero, degrading the state government
to a mere mechanism for laying and collecting taxes for the maintenance
of the judiciary, the militia and the state charities, reached its
culmination in the Illinois decision referred to. How far the pendulum
has swung back towards the position of Massachusetts in 1780 is shown
by the action of the people of Utah, by the decision of their Supreme
Court, and by the decision of the Supreme Court of the United States
sustaining that state court.
The people of Utah, instructed by the Supreme Court of Illinois
in 1895, showed by their action in 1896 that they had learned the
lesson. For, not content with such sweeping generalities as those
of the Massachusetts constitution, they incorporated into their new
constitution of 1896 an article dealing explicitly with the rights of
working people, as follows:
“Section 1. The rights of labor shall have just protection through laws
calculated to promote the industrial welfare of the state.
“Sec. 2. The legislature shall provide by law for a board of labor,
conciliation and arbitration, which shall fairly represent the
interests of both capital and labor. The board shall perform duties and
receive compensation as prescribed by law.
“Sec. 3. The legislature shall prohibit:
“(1) The employment of women, or of children under the age of fourteen
years, in underground mines.
“(2) The contracting of convict labor.
“(3) The labor of convicts outside prison grounds, except on public
works under the direct control of the state.
“(4) The political and commercial control of employees.
“Sec. 4. The exchange of blacklists by railroad companies, or other
corporations, associations, or persons is prohibited.
“Sec. 5. The right of action to recover damages for injuries resulting
in death shall never be abrogated, and the amount recoverable shall not
be subject to any statutory limitation.
“Sec. 6. Eight hours shall constitute a day’s work on all works or
undertakings carried on or aided by the state, county or municipal
governments; and the legislature shall pass laws to provide for the
health and safety of employees in factories, smelters, and mines.
“Sec. 7. The legislature, by appropriate legislation, shall provide for
the enforcement of the provisions of this article.”
In accordance with the provisions of section 7 of this article, the
Utah legislature proceeded to enact a statute, of which the essential
features are as follows:
“Section 1. The period of employment of workingmen in all underground
mines or workings shall be eight hours per day, except in cases of
emergency where life or property is in imminent danger.
“Sec. 2. The period of employment of workingmen in smelters and all
other institutions for the reduction or refining of ores or metals
shall be eight hours per day, except in cases of emergency where life
or property is in imminent danger.”
On June 26, 1896, one Holden was arrested under a warrant charging
him with employing a man to work in a mine ten hours in one day. The
court, having heard the evidence in the case, imposed a fine of $50
and costs, and ordered the defendant to be imprisoned in the county
jail for a term of fifty-seven days, or until the fine and costs
were paid. The case was immediately appealed, under habeas corpus
proceedings, to the Supreme Court of Utah, and the law was sustained.
The case was then carried to the Supreme Court of the United States,
which handed down its decision on February 28, 1898, Justices Peckham
and Brewer dissenting. The statute was again sustained. The position
of the Supreme Court of the United States was defined as to the
constitutionality of statutory restrictions upon the hours of labor
of adults; and as to the powers and duties of the states with regard
to the health and welfare of employees. The decisions of the courts
of Illinois, Nebraska and Colorado were quoted with disapproval.
But the great service rendered by this decision was its destruction
of the bogy-man with which state supreme courts had for years been
terrifying themselves, and each other, and timorous legislatures,
under the name of the fourteenth amendment to the Constitution of the
United States. Once for all, it is convincingly laid down by this
decision that statutes restricting the hours of labor of employees in
occupations injurious to the health will not be held unconstitutional
by the Supreme Court of the United States on the ground that they are
in conflict with the fourteenth amendment to the Constitution of the
United States.
The decision is so coherent, so closely knit, that injustice is done
by quoting isolated parts of it by way of illustrating the position
taken by the court. Yet certain portions of the decision are of such
vital import that they are here reproduced. Says the court: “The
Constitution of the United States, which is necessarily and to a large
extent inflexible, and exceedingly difficult of amendment, should not
be so construed as to deprive the states of the power to so amend
their laws as to make them conform to the wishes of the citizens, as
they may deem best for the public welfare, without bringing them into
conflict with the supreme law of the land.” And again the court says:
“This court has not failed to recognize the fact that the law is, to
a certain extent, a progressive science; that, in some of the states,
methods of procedure which, at the time the constitution was adopted,
were deemed essential to the protection and safety of the people, or to
the liberty of the citizen, have been found to be no longer necessary;
that restrictions which had formerly been laid upon the conduct of
individuals, or of classes of individuals, had proved detrimental to
their interest, while, upon the other hand, certain classes of persons
(particularly those engaged in dangerous or unhealthful employments)
have been found to be in need of additional protection.” “While this
court has held that the police power cannot be put forward as an excuse
for oppressive and unjust legislation, it may be lawfully resorted to
for the purpose of preserving the public health, safety, or morals,
or the abatement of public nuisances, and a large discretion ‘is
necessarily vested in the legislature, to determine, not only what the
interests of the public require, but what measures are necessary for
the protection of such interests.’” Finally, the court quotes with
approval the most advanced position taken by the Supreme Court of Utah,
as follows: “Though reasonable doubts may exist as to the power of the
legislature to pass a law, or as to whether the law is calculated or
adapted to promote the health, safety, or comfort of the people, or to
secure good order, or promote the general welfare, we must resolve them
in favor of the right of that department of government.”
Having thus come to the rescue of the state legislatures and their
powers in general, the court deals with their duties in regard to the
health of employees. It sets up the general proposition that, “It is
as much for the interest of the state that the public health should be
preserved as that life should be made secure.” “In [some] states laws
have been enacted limiting the hours during which women and children
shall be employed in factories; and while their constitutionality, at
least as applied to women, has been doubted in some of the states,
they have been generally upheld. Thus, in the case of the Hamilton
Manufacturing Company (120 Mass., 283), it was held that a statute
prohibiting the employment of all persons under the age of eighteen,
and of all women laboring in any manufacturing establishment more than
sixty hours per week, violates no contract of the Commonwealth implied
in the granting of a charter to a manufacturing company, nor any right
reserved under the constitution to any individual citizen, and may be
maintained as a health or police regulation.”
It is refreshing to find the enlightened Massachusetts decision thus
authoritatively brought back into the “current of authority” from
which it was, as has been seen, thrust forth by the Illinois court
in Ritchie _vs._ the People. The Supreme Court of the United States
settles also the vital question: “Who shall decide which occupations
are sufficiently injurious to justify the restriction of the hours
of daily labor of persons employed in them?” On no points have state
courts been more arrogant, the Illinois court taking perhaps the most
extreme position of all in the following passage of its decision: “It
[the eight hours section of the state factory law] does not inhibit
their [women’s] employment in factories or workshops. On the contrary,
it recognizes such places as proper for them to work in by permitting
their labor therein during eight hours of each day. The question here
is not whether a particular employment is a proper one for the use of
female labor, but the question is whether, in an employment which is
conceded to be lawful in itself, and suitable for woman to engage in,
she shall be deprived of the right to determine for herself how many
hours she can and may work during each day. There is no reasonable
ground--at least none which has been made manifest to us in the
arguments of counsel--for fixing upon eight hours in one day as the
limit within which woman can work without injury to her physique, and
beyond which, if she work, injury will necessarily follow.”
The court was naturally not in a position to investigate the conditions
of work in the factories and workshops of Illinois. That is not its
function. But the legislature of 1893, which enacted the statute then
under consideration by the court, had been in a position to investigate
the conditions of manufacture throughout the state; it had appointed a
joint committee of the house and senate to investigate the factories
and workshops in operation; this committee had visited a great number
of establishments, and had taken a large amount of testimony from
employers, employees, physicians, visiting nurses, inspectors and
other witnesses, and had decided that, in view of the intensity of
work and the speed required in virtually all occupations, eight hours
did constitute a limit of hours of labor beyond which women could not
work without injury. All this no court can do; it has no apparatus for
such investigations; but this circumstance did not prevent the Illinois
court from usurping the right which the later decision of the Supreme
Court of the United States happily reassigns to the legislature.
Touching the powers of the legislatures in the matter of health and the
hours of labor, the Supreme Court of the United States says: “These
employments, when too long pursued, the legislature has judged to be
detrimental to the health of the employees; and, so long as there are
reasonable grounds for believing that this is so, its decision upon
this subject cannot be reviewed by the federal courts.”
And elsewhere the Supreme Court of the United States quotes with
approval the words of the Utah court: “It may be said that labor in
such conditions must be performed. Granting that, the period of labor
each day should be of reasonable length. Twelve hours per day would be
less injurious than fourteen, ten than twelve, and eight than ten. The
legislature has named eight. Such a period was deemed reasonable.”
The Illinois court had said: “The police power of the state can only be
permitted to limit or abridge such a fundamental right as the right to
make contracts when the exercise of such power is necessary to promote
the health, comfort, welfare, or safety of society or the public; and
_it is questionable whether it can be exercised to prevent injury to
the individual engaged in a particular calling_.”
In beneficent contrast with this sinister dictum, is the following from
the United States Supreme Court: “The legislature has also recognized
the fact, which the experience of legislators in many states has
corroborated, that the proprietors of these establishments and their
operatives do not stand upon an equality, and that their interests are,
to a certain extent, conflicting. The former naturally desire to obtain
as much labor as possible from their employees, while the latter are
often induced by the fear of discharge to conform to regulations which
their judgment, fairly exercised, would pronounce to be detrimental to
their health or strength. In other words, the proprietors lay down the
rules, and the laborers are practically constrained to obey them. In
such cases self-interest is often an unsafe guide, and the legislature
may properly interpose its authority.” “The fact that both parties are
of full age and competent to contract, does not necessarily deprive the
state of the power to interfere, where the parties do not stand upon
an equality, or where the public health demands that one party to the
contract should be protected against himself. The state still retains
an interest in his welfare, however reckless he may be. The whole is no
greater than the sum of all the parts, and when the individual health,
safety and welfare are sacrificed or neglected, the state must suffer.”
This decision was not, of course, retroactive. It did not revive the
Illinois statute restricting to eight hours in one day the work of
female employees engaged in manufacture, enacted in 1893 and pronounced
unconstitutional by the state Supreme Court in 1895. It did, however,
by citing with disapproval virtually every proposition laid down by the
Illinois court in that decision, give satisfactory assurance that the
next eight hours law enacted in Illinois, if restricted in its terms
to occupations dangerous to the health of the employees, must stand as
good law, and cannot be pronounced in conflict with the Constitution of
the United States.
The decision of the Supreme Court of the United States in the case
of Holden vs. Hardy renders it unnecessary that, in future, statutes
restricting the hours of labor should be confined in their application
to women and minors, if they have to do with occupations injurious to
the human organism. The miners of Illinois and Pennsylvania might well
strive for statutory confirmation of the eight hours day which they
now enjoy only under terminable agreements based on arbitration. And
women in the cotton mills have only to show that the ever increasing
numbers of spindles and shuttles, and the ever increasing rate of speed
required of them by the improvement of machinery, are wearing out their
working energy, in order to be entitled to legislative restriction upon
their working hours under the reasoning of this admirable decision. To
women driving foot-power machines under the sweating-system, and to the
employees in countless other occupations, the same reasoning applies.
For the purpose of ascertaining which occupations are injurious, there
might well be comprehensive investigations by boards of health and
bureaus of labor.
The fact that the hours of labor of adult men can be restricted
by statute only in occupations proven injurious to the health, is
emphasized anew by the decision of the Supreme Court of the United
States in the case of Lochner _vs._ New York,[7] where the court
said: “The law must be upheld, if at all, as a law pertaining to the
health of the individual baker. It does not affect any other portion
of the public than those who are engaged in that occupation. Clean and
wholesome bread does not depend upon whether the baker works but ten
hours per day or only sixty hours a week. The limitation of the hours
of labor does not come within the police powers on that ground....
The mere assertion that the subject relates, though but in a remote
degree, to the public health, does not necessarily render the enactment
valid.... We think that there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one to that degree which
would authorize the legislature to interfere with the right to labor,
and with the right of free contract on the part of the individual,
either as employer or employee. In looking through statistics regarding
all trades and occupations, it may be true that the trade of a baker
does not appear to be as healthy as some other trades, but it is also
vastly more healthy than still others. To the common understanding, the
trade of a baker has never been regarded as an unhealthy one.”
In New York, an extension of the statutory right to leisure followed
directly upon the decision of the United States Supreme Court in the
case of Holden _vs._ Hardy. As has been shown elsewhere, the hours of
work of women over the age of twenty-one years, engaged in commerce
and manufacture, were unrestricted in that state until 1899, when the
legislature, encouraged by this decision, restricted to ten hours in
one day and sixty hours in one week, the labor of women engaged in
manufacture.
The Supreme Courts of Nebraska[8] and Washington[9] have sustained
statutes modeled on those of Massachusetts for the protection of women
in their right to leisure, the court of Washington citing the decision
of Massachusetts and the Supreme Court of the United States in support
of its opinion, and observing that the Illinois decision is the only
one by which an act of this kind has been declared unconstitutional by
a court of last resort.
In Missouri,[10] the provisions of the Utah law restricting to eight
hours the work of miners, adopted by the legislature and sustained by
the Supreme Court of Missouri, are now in force.
It has been related that the legislature of Colorado inquired of the
Supreme Court of that state whether the provisions of the Utah law
would be constitutional if enacted in Colorado, and was assured that
they would not be constitutional. In spite of this assurance, such
provisions were enacted by the legislature in 1899. In July of the
same year a case arising under the statute was carried to the state
Supreme Court and the law was pronounced unconstitutional.[11] The
people of Colorado then followed the example of the people of Utah and
amended the state constitution by the adoption of a section authorizing
the legislature to enact a provision similar to that which had been
pronounced constitutional by the Supreme Court in the case of Holden
_vs._ Hardy. This the legislature of Colorado has hitherto failed to do.
The history of Colorado repeats in a spectacular manner the experience
of Illinois. Statutory recognition of the right to leisure being
denied, working people have striven to attain by strikes what they
had failed to obtain by statute. The lawlessness which has disgraced
Colorado, like the lawlessness which has long disgraced Illinois, is
traceable ultimately to the denial of law by the authorities which
alone can constitute and establish it. In Illinois the Supreme Court
denied a right; in Colorado, the legislature. In both states the harm
done is irreparable. Lives have been sacrificed; violence has taken the
place of civic order; the public conscience has been outraged. But the
Supreme Court of the United States has indicated the right path; the
way is open; the remedy is at hand. Other officials can be elected; the
will of the people can be enforced.
The effort of the wage-earners is to establish the right to leisure; to
transmute the unemployed time of the dull season, with its attendant
demoralization and suffering, into regular daily leisure, with salutary
opportunity for rest, recreation, education, family life and self-help
by means of savings societies and all those agencies administered by
working people themselves which depend for their success upon the
regular attention of persons free from over-fatigue and irregular
pressure.
It is conceded that the right to leisure may be established by statute
for children and minors in all states and in all industries; for women
in some states in all industries; for both men and women in industries
dangerous to the health; and, finally, for employees of the federal,
state and municipal governments. It is, however, one thing to have
these points established in principle by the courts, and an entirely
different thing to achieve in practise the establishment of leisure
throughout the industrial life of the country, in accordance with that
principle.
Were statutes establishing the right to leisure already enacted and
in force in accordance with the principles clearly laid down by the
Supreme Court of the United States, the multitude of men, women and
children affected by them would be so great, the ramifications of
industry embraced would be so far reaching, that relatively little
would be left to the trade agreement with its precarious renewal and
threat of strikes to secure enforcement.
The immediate, practical lessons derivable from this weighty decision,
for all those who believe that the right to leisure should be
established by constitutional methods, appear to be briefly as follows:
1. Legislation restricting the hours of labor of employees in
occupations obviously injurious to the health will not be annulled by
the Supreme Court of the United States on the ground of conflict with
the fourteenth amendment to the Constitution of the United States.
2. The short working day may be established by statute in the various
states for all those occupations which are in themselves obviously
injurious to the health of employees, _and it rests with the state
legislatures to decide which are such occupations_.
3. Legislation limiting the hours of labor of employees need not be
restricted to women and minors, as had been the usage previously to
1898.
4. It is desirable to provide for such legislation by inserting
in state constitutions, wherever there is not already such an
enabling article, a provision similar to the general article of the
Massachusetts constitution, or to the special article providing for the
rights of labor which forms the distinguishing characteristic of the
new constitution of Utah.
It is always to be remembered that these things do not occur
spontaneously; they are the fruits of long and patient endeavor.
Adverse decisions in states have cumbered the earth with error,
discouragement, apathy, if not actual antagonism to this sane and
hopeful, though slow and difficult, method of ethical gain through
legislation.
The decision of the Supreme Court of the United States in the
case of Holden _vs._ Hardy did but open the way, by sustaining a
statute affecting a few hundred men in a state not highly developed
industrially and by affording a precedent national in its scope,
whereby may be done over again successfully work which, in several
states, had once been done in vain. Yet it assures ultimate success to
the long striving for the statutory enactment of the right to leisure.
State constitutional conventions must be held; state constitutions
modified; legislatures induced to act when authorized to do so; state
Supreme Courts brought to follow the precedent set by the Supreme Court
of the United States. Years must be consumed in the work of education
and legislation before the full fruits of this enlightened judicial
interpretation can be reaped and enjoyed by working people throughout
the Republic. Yet the ethical gain accruing at every step of the long
process is amply worth the exertion which it costs.
=Trade Agreements and Statutes.=--It is possible that at present a
larger number of people enjoy some degree of settled daily leisure
by means of trade agreements specifying nine or eight hours as their
day’s work than by reason of statutory provisions. Yet this is, from
the point of view of the welfare of the community, the less desirable
method of securing leisure, for several reasons. Leisure obtained
in this way rests upon no acknowledged legal right; it is gained by
struggle and rests upon the power of the organizations on both sides
to maintain the terms of an agreement, enforcing them by strike
or lockout; it is never final, but always subject to cessation at
the termination of the agreement; its existence for however long a
time establishes no legal right; at best it creates only a valuable
usage. Finally, this method of establishing some degree of settled
daily leisure is open only to employees in those occupations in
which the strongest type of trade organization develops; _i. e._,
in which strength and skill are both required, and women, children,
and unskilled or feeble men are kept out of the labor market by the
conditions of the trade itself. Such occupations are those of the
locomotive engineer, the typographer (printing involves not only skill
in setting type but strength to lift forms), the pilots of the ocean
harbors and the great lakes, certain branches of mining and ore
reduction, and the building trades, with some branches of manufacture.
The nature of the work selects men of certain qualifications, bodily,
mental and industrial, in all these cases; and such men are, in the
nature of the case, better able to make favorable terms for themselves
than can be made by the ten year old children of the Georgia cotton
mills, or the victims of the sweating-system in New York City.
For children and young girls, leisure assured by means of trade
agreements of their own is unthinkable. Such workers can derive it by
this method only indirectly and under exceptional circumstances, as
when a trivial minority of them are engaged at work which interlocks
with the work of men employed in a trade bound by such an agreement.
The maintenance of leisure by means of a trade agreement limiting the
number of hours in a day’s work, presupposes the permanent maintenance
of militant trade organizations of selected workers ready to meet on
their own terms any organization of employers. Indeed, for many years
the men in such occupations as have been indicated willingly relied
upon the strength of their organizations for obtaining leisure, as well
as wages and conditions satisfactory to themselves.
With all their well-recognized disadvantages as a method of obtaining
leisure, trade agreements remain indispensably necessary throughout
a wide range of industry, because, as appears from the foregoing
examination of the leading cases on the subject, statutory provision
for daily leisure for adult male workers in the employ of corporations
and private employers is limited, in the opinion of the Supreme Court
of the United States, to those industries which are, or may be,
injurious to the health. In the case of non-injurious occupations
leisure for men will have to be obtained and maintained through trade
agreements.
The right to leisure, deeply felt by working people to be a human
right which they are determined to assert, has been the subject of
ceaseless struggle and will continue so to be until its assured
possession by all the people takes it out of the realm of contention.
When, therefore, the Supreme Court of the United States limits the
power of the states to restrict the hours of work of adult citizens, to
occupations injurious to the health, it thereby relegates to the trade
organizations and their trade agreements the task of maintaining, as
a human right, by militant exertions, that leisure which it fails to
assure to a very large class of voters.
Strikes on the largest scale, in which the establishment of leisure
constitutes an important element of contention, are to be expected
as an integral part of industrial life so long as the Supreme Court
of the United States maintains the position that the freedom of
contract cannot be interfered with for the purpose of establishing by
statutory provision daily leisure for adult employees in non-injurious
occupations conducted by corporations and private employers. This
is the inevitable result of devolving upon trade agreements, in
the case of adult male employees not engaged under contract by any
government and not engaged in an injurious employment, the function
performed by statutory provisions in the case of other large classes
of working-people. In the occupations thus outlawed, the result of the
outlawry is the recourse to extra-legal means of asserting the human
right which has not yet become a statutory right.
The improvement of machinery is incessant; the output increases; every
occupation becomes more productive. On the other hand, the pressure
of competition weighs upon employers; dividends must be derived,
irrespective of the strain upon employees. Workingmen elect to receive
a part of their share of the increased productivity of their labor in
the form of a reduced working day, as added daily leisure; and, since
the court tells them that this cannot be done by legislation, they
have recourse to the one alternative, the trade agreement, enforced by
strikes.
The right to leisure is a human right in process of recognition as a
statutory right. Wherever it is established, the objects of struggle
between employers and employees are in so far reduced. Where, on the
other hand, courts have held that the right cannot be recognized and
established by statute, a ground of incessant contention is set up. In
such communities, peace may be enjoyed by the public when, in a given
trade, the inequality between the parties is such as renders a demand
for regular leisure utterly hopeless, as in the sweated-trades or
trades in which children and women are present in large numbers, _e.
g._, the Southern cotton mills. Or peace may temporarily exist when
both parties are so equally powerful that both fear warfare, and both
profit by truce. This peace, however, is always in danger of coming
to an abrupt end by the introduction of some new machine, or by the
immigration of some new and especially adaptable body of laborers.
Critics of the effort to establish by statute the right to leisure may
contend that the process is an intolerably slow one, that a statute,
also, is liable to termination by repeal, is as little stable and
permanent as a trade agreement and may prove excessively difficult
to enforce. Such critics can easily make out a strong case for their
contention. It is true that, after the constitution of a state
authorizes the legislature to act, the legislature may fail to do so,
as has been shown by recent events in Colorado. Or, a legislature may
enact measures which are illusory for want of penalties, or by reason
of exceptions such as that which weakens the restriction upon the
hours of labor of women in New York. Or there may be no provision for
the appointment of factory inspectors, as in the case of the recent
child-labor law of Alabama, which provides that children under the age
of thirteen years shall not be employed at night in cotton mills, but
makes no provision for officials to enforce the prohibition, and in
the case of the mercantile employees law of New York City, where the
Retail Dealers’ Association succeeded in 1898, and each subsequent
year, in having stricken from the municipal budget all appropriation
for the salaries of mercantile inspectors. Or, effective officers may
be removed and incompetents appointed in their places, as has happened
in many states.
Moreover, vigilance is needed even where workable statutes are enforced
by faithful officers, lest valuable measures be repealed after being in
force so long as to seem beyond all danger of attack. A case in point
is the repeal of the so-called “Fifty-Five Hours Law” in New Jersey,
which had remained unaltered upon the statute books from 1892 to 1903.
This statute provided that women and minors under the age of eighteen
years should not be employed in manufacture longer than ten hours in
one day and fifty-five hours in one week, or after six o’clock in
the evening of the first five days of the week and noon on Saturday.
Although this law had never been passed upon by the court of last
resort in the state, or enforced with vigor by the factory inspectors,
it had nevertheless been the means of assuring unusual leisure
to women employed in industries in which men maintained powerful
organizations and insisted upon compliance with the letter of the law,
thus facilitating their own success in demanding the same leisure.
The statute was so well regarded by a large number of employers, and
a larger number of employees, that its repeal, in 1903, came as a
distinct surprise.
Statutes restricting the hours of work of railway employees, in the
interest of the safety of passengers, have in some cases been so
defiantly and persistently violated by companies (holders of charters
and franchises) as to drive the employees into striking in order to
enforce the obedience of their employers to the terms of the law, when
recourse to the courts seemed to the workers not certain to bring forth
a decision sustaining the terms of the statute.
Yet, acknowledging the inevitable slowness of the process of statutory
recognition of the right to leisure, and admitting all the difficulties
and obstacles to be encountered in making progress and in maintaining
it when made, it nevertheless remains true that it is more dignified
for the working people and infinitely more wholesome for the community
to be enlisted in behalf of the enactment and enforcement of the law,
than engaged in striving to establish and maintain a right without
recourse to the law.
FOOTNOTES:
[6] These are Holden _vs._ Hardy (U. S. Supreme Court, Feb. 28, 1898);
Atkins _vs._ the State (U. S. Supreme Court, Oct. Term, 1903); Lochner
_vs._ New York (U. S. Supreme Court, April 19, 1905); and that older
decision which sustained the federal act of 1892 limiting to eight
hours the working day of persons employed under contract directly by
the Government of the United States.
[7] _Supreme Court Reporter_, Vol. 25, p. 539 _et seq._
[8] Wenham _vs._ the State, 91 Northwestern Reporter, 421. Statute
enacted Mar. 31, 1899.
[9] State _vs._ Buchanan, 70 Pacific Reporter, 52. Statute enacted 1901.
[10] State _vs._ Cantwell _et al._, 78 Southwestern Reporter, 569.
Statute enacted March 23, 1901.
[11] In re Morgan, 58 Pacific Reporter, 1071, July, 1899.
CHAPTER V
THE RIGHT OF WOMEN TO THE BALLOT
It is now generally accepted that that legislation has proved wholly
beneficent which has, during the past half century, afforded to women
and girls their present wide-spread opportunity for education. Indeed,
we are so accustomed to it that we realize with difficulty the fact
that such provision on so large a scale is new to human experience.
As a result of this far-reaching movement there is present in the
community an element of distinctive intelligence available for social
and civic usefulness such as never before existed. That we are far
from getting the full benefit of the virtue and intelligence stored
up in the community; that the leisure and culture which have come to
home-keeping women might be utilized on a far larger scale than we
have yet attained; that an ethical gain has been made whenever the
new intelligence of women has become available in the body politic;
and, finally, that other important gains may reasonably be expected in
proportion as its availability is extended by conferring the franchise
upon women, it is the object of this chapter to indicate.
It has been urged by opponents of the enfranchisement of women, that
there are other methods by which this intelligence may be utilized
without active participation in political life, and this is not
denied. Indeed, men who are faithful in the performance of their duty
as voting citizens carry on, in addition thereto, many lines of social
and civic activity. They do not, however, appear to believe that
they would be more valuable in the performance of these voluntarily
assumed tasks if relieved of their political duties. It is not members
of philanthropic and civic committees who absent themselves from the
polls; on the contrary. Why, then, should not women follow both lines
of activity and prove even more effective in their philanthropic and
educational work, by reason of their added powers as voting citizens?
Does anyone believe that the efforts of the Public Education
Association of New York would have been less effective during the
past ten years, if they had been reënforced by the presence in the
electorate of the mothers, the teachers, and the other interested
women, including the members of the Association itself?
The fear lest the votes of ignorant women may outweigh those of
the intelligent could be met by the imposition of an educational
requirement such as is already in force in Massachusetts. The utterly
unreasonable fear that the votes of the depraved may outnumber those
of the righteous scarcely needs mention. The balance of virtue and
depravity among women compares at least fairly with that of the present
electorate.
=Women’s Opportunities on Public Boards and Commissions.=--Naturally,
the first tentative step in the direction of securing for the
community the benefit of the newly attained intelligence embodied in
educated women, took the form of appointment of women upon public
bodies having to do with women and children. In this connection,
however, there must be noticed the curious phenomenon that some women,
whose valuable services entitle them to a respectful hearing, have
expressed the opinion that, in such positions, women may be of greater
value by reason of their non-political position, which gives assurance
of disinterestedness not thought attainable by voting citizens. It
seems to indicate a not unnatural loss of the sense of proportion that
these faithful servants of the community, deeply impressed with the
great need for work such as they have been doing, should forget that
their number is so insignificant as to weigh but lightly in comparison
with the disadvantage arising from the loss out of the voting mass of
the accumulated intelligence of the vast body of women, including all
the teachers. Indeed, these alleged, exceptional cases of advantage
arising from the non-political position of women serving in public
capacities must be regarded as fully offset by those other cases
in which able women, also serving on boards, have found themselves
shelved by being placed on committees and sub-committees whose work was
unimportant; and far more than offset by the exceedingly small number
of women serving at all in such capacities compared with the great
numbers who are qualified by nature and education for this work.
In general, the statement is true that in states in which women do not
vote, they are not appointed to salaried positions on public boards and
commissions, unless it is expressly provided in the statute creating
the public body that a certain proportion of the members _shall_ be
women. Where the word _may_ is used, there is a strong tendency towards
the gradual replacement of non-voting women by voting men. And in many
cases this involves a distinct loss to the dependent persons in whose
interests such public bodies exist. Nor is this disparity confined to
salaried positions. It is also most unusual to find an equal number of
men and women on unpaid boards and commissions, even when the duties
required are such as women are preëminently fitted for, and where the
number of available women of intelligence is very large, as in New York
and Massachusetts.
The precarious nature of the opportunity for public service open to
women, where they have not been admitted to the electorate, is well
illustrated by an episode in the recent history of Illinois. During his
term of office, 1893-1897, Governor Altgeld appointed fifteen women to
state boards of education, health, charities, factory inspection and
the management of penal and reformatory institutions, among them women
of such well-known philanthropic activity as Miss Julia C. Lathrop,
Mrs. Alzina Stevens, and Dr. Sarah Hackett Stevenson. All these
appointees served the state faithfully and several with distinction.
The succeeding governor, however, continued the appointment of only two
of the fifteen, replacing the remainder with men, who were voters.
A more recent example of the same precarious opportunity for service
is afforded by the experience of the women members of the London
School Board. From 1870 to 1902, women both voted for the members of
the board and were eligible for election to it, several women having
served long and usefully. But in 1902, Parliament legislated the School
Board out of existence and, in 1903, relegated its duties to the County
Council, for election to which women are not eligible. In this case
a twofold right,--that of voting for the members of the School Board
and of serving upon it,--was legislated out of existence after having
been exercised for more than thirty years. Parliament, which used its
powers to this end, is, of course, wholly independent of women, since
they possess only the municipal franchise and the right of voting
for members of the School Board. Obviously those minor forms of the
franchise, and the right of serving on boards for public purposes, are
held by an insecure tenure until the full power, the Parliamentary
franchise, confirms their possession.
Despite the unstable nature of their opportunities, however, women
have begun to work out interesting and suggestive changes in certain
branches of the local governments. Thus, in connection with the police
department, which was formerly regarded as utterly alien to them,
women now serve as police matrons and probation officers, regularly
recognized as officers of the court. Women attendance agents connected
with the schools prevent many children from needing the attention of
the men officers, and may be regarded as in a sense preventive or
substitute police. Reformatories for women and girls, established
and maintained out of the public funds, and conducted by women,
are beneficent manifestations of the same tendency to utilize the
fund of new intelligence for communal purposes. In the same line of
modification of the courts and their personnel is the activity of
women lawyers as counsel for Societies for the Legal Protection of
Women and Children. This is perhaps the most gracious form of activity
yet accessible to the growing number of women who have read law; and
the marked improvement in the attitude of the Bench towards women and
minors in both civil and criminal cases of importance, observable
during the past fifteen years, is believed by the writer to be directly
due to the patient efforts of many such societies.
Women who serve as inspectors of immigrant women and children, both
meeting incoming vessels at the Atlantic ports and awaiting the
arrivals at Ellis Island, are filling posts of duty of the highest
value both to the immigrants and to the society of which they may
become a part; as are the women acting as factory inspectors, sanitary
inspectors and inspectors of tenements. The addition of nurses who
have received hospital training to the federal army and to the public
schools of the city of New York, is another form of enrichment of the
resources of the community by reason of the newly acquired intelligence
among women. Unfortunately, the small number and insecure tenure
of office of these valuable servants of the public still deprive
the community of a vast deal of useful service which cannot become
available until the constituency attains its full complement of women
voters as much interested in these human affairs as the present
constituency is absorbed in manufacture, commerce and transportation.
=Need of Women in Educational Work.=--By nature, by training, and by
the accepted usage of the national life, women are chiefly occupied
with the care, nurture and education of the young. Moreover, for
reasons economic as well as pedagogic, the teachers in the public
schools are largely women. It was, therefore, in following the line
of least resistance that women have, in many places, become eligible
for appointment or election to the school-boards; or enfranchised
sufficiently to vote for the members of the boards of education. It is
the belief of the writer that the results of such enfranchisement are
conspicuously beneficial; that a broad line divides the communities
in which women perform the duties of voting citizens in all matters
relating to the schools, from those in which they are prevented from
exercising those functions. It is the commonly accepted division of
labor throughout the Republic that men are occupied with business
and professional duties, and women take care of the children. In the
administration of the schools this division of labor expresses itself
in the fact that the teaching staff, which comes into daily contact
with the children and is intimately acquainted with their needs,
is composed chiefly of women, but the business of the schools, the
work of the board of education, is conducted either wholly by men
or by boards on which men constitute the majority of members. The
consequences of this division, in communities in which women do not
vote, are conspicuous. Business principles (keeping down the tax-rate),
modified by political interest (corrupt awards of contracts, the
spoils system in the appointment of teachers, etc.), exercise an undue
influence,--greater than the consideration of the interests of the
children, which do not readily become known to the business-men who
compose the boards of education.
A case in point is the experience of the children in the schools of
the city of Chicago. It is stated by citizens of Chicago, long and
intimately acquainted with the Board of Education, that the membership
of the board has in recent years, been composed with reference to
the industrial and sectarian interests of the city rather than with
exclusive reference to the welfare of the children. The railroad and
traction companies (eager to keep down taxation), the real-estate and
building interests, (alert in the matter of buildings and sites), the
book-trust (ardently opposed to the introduction of free text-books),
the school furniture companies, and certain ecclesiastical interests
(keen to secure the appointment of teachers each after its own faith),
are all said to have been represented by men of excellent ability upon
the Board of Education. But the children and the teachers appear to
have been somewhat lost sight of in the general concentration of zeal
for the interests of manufacture, commerce and sectarian religion.
While it is true that there have been, for a number of years, one
or more women members of the Board of Education in Chicago, they
constituted a mere vanishing minority of the whole number of members,
not sustained by a constituency of voting mothers, teachers, and other
interested women, but appointed by the mayor of the city, apparently
as a concession to the demand that the Board of Education shall not be
wholly devoid of women. Their influence has, therefore, been of the
slightest and seriously disappointing to such friends of the children
and the teachers as have hoped unduly much from the mere presence in
the membership of the board of women, unsustained by the power of an
interested voting constituency.
Some of the results of the preponderant interest of the Board of
Education in subjects apart from the welfare of the children of the
city of Chicago, are picturesquely shown by the experience of a young
neighbor of the writer. This Italian girl entered the public schools
in early childhood, attending irregularly after the fashion of Italian
children and with the connivance of an incompetent truancy department.
In the course of eight years devoted chiefly to the study of language,
she acquired the least possible broken and ungrammatical English.
Seeing on the wall of the settlement a picture of Washington, she said
confidently, “I know him, first man!” Being asked his name she said
with certainty in her tone: “I learn him in school. First in peace,
first in war, first in hearts of countrymen! Eyetalian man.” Being
pressed for his name, this product of the schools said, “Garibaldi!”
Such was the foundation of English, history, and intelligent devotion
to the ideals of the American Republic with which this adopted citizen
left school, and entered upon the serious business of education in a
neighboring bakery belonging to the biscuit trust. There she learned at
once that her continued employment depended upon her becoming one of
the Lady Cracker Packers, whose ideals she found it easy to understand
and appreciate. Within a year she learned to vote as to the amount
of dues which she and her fellow workers should pay, and how these
dues were to be expended, for what purposes and by what officers,
in the election of whom she naturally participated. She attended
meetings, at which the objects of the organization were explained,
and was taught that her short working day depended upon the strength
of the organization. To this organization she devoted the fervor of
the Latin temperament, which had never been aroused by the daily
perfunctory salute to Old Glory at the opening of the sessions of that
school which had left her to believe that George Washington’s name
was Garibaldi. At the age of sixteen years this girl was thoroughly
accustomed to exercising in the union of her trade all those functions
which at twenty-one she will still be unqualified for in the larger
life of the commonwealth. The union looms correspondingly large in her
consciousness.
The state of Illinois, through the decision of the supreme court, tells
this girl that it is powerless to restrict the hours of daily work
which the biscuit trust requires of her; but the union confidently
undertakes the task by means of organization and its label, with the
possibility of a strike in the background. When the state tells her
through another decision of the court that it is powerless to constrain
the biscuit trust or any other employer to pay her wage weekly in money
of the United States, the union performs this function effectively by
the same means,--organization, the use of the label and the possibility
of strikes.
When the lads with whom she works reach the age of twenty-one years,
their interests are broadened and their allegiance to the union
divided by the demands of the political parties upon their attention.
Even on the most sordid plane of their immediate self-interest, the
city council and the state legislature claim their thoughts. But the
girl on reaching twenty-one years will have escaped from all farther
educational influences; will have been long married and actively
engaged in bringing up in the most unreasonable manner the large family
which continues to the second generation in the Italian colonies. She
will feed her infants bananas, bologna, beer and coffee; and many of
these potential native citizens will perish during their first year,
poisoned by the hopeless ignorance of their school-bred mother. She,
however, will always remain a faithful ally of the union as the only
institution which has ever invited her intelligent participation.
However convinced one may be of the value of the trade union in the
community, it is hardly reassuring that, in the presence of the vast
machinery of public education, the union should be, in practise, the
chief educational agency vitally affecting the children and young girls
in the immigrant colonies of the great manufacturing centers.
This girl is only one of thousands who are carried on the rolls of the
public schools for years, but whose lives are so little touched by the
work of the schools that, after two or three years in the factory,
they have forgotten how to read unless, indeed, they are gathered
into some union which carries forward their education in a one-sided
manner, wholesome enough if balanced by other broadening and deepening
experiences, but sadly inadequate as a substitute for the education
supposedly afforded by the public schools to all the children.
Wherever a powerful business interest is involved, laws are readily
enforced in its behalf and the administration of local government rises
to meet its requirements. This has been strikingly illustrated in the
efficiency of the fire department of Chicago throughout all the years
of the uttermost political corruption of the city, when every other
department reached the deepest depths of incompetence and inefficiency.
The fire marshal of the underwriters arrives at the scene of every
conflagration, large or small, as soon as the city’s firemen, if not
sooner;--and woe betide the man, or beast, or machine that falls below
the highest achievement possible in every given case.
It is the contention of this chapter that women, all women, of a
given community have the same interest in the children that the
underwriters have in the conflagrations and the administration of the
fire department. But, while the underwriters are voters, contributors
to campaign funds, and representatives of the keenest interests of the
business men, and have for all these reasons, very great local power
to constrain the municipality to keep its fire department up to the
highest point of efficiency, the women of Chicago have no corresponding
power of making felt their interest in the schools. The community is,
therefore, denied a reënforcement of moral power, and of educational
interest, which it sorely needs to counterbalance the excessive
pressure of business interest.
To the preponderance of the interests of business over the interests
of the children, expressed in the majority of business men and the
minority of women on boards of education, is due, doubtless, in other
cities as well as in Chicago, the idiosyncrasy of the curriculum
whereby the daughters of working-people are taught just those things
which tend to make them valuable as stenographers, typewriters, cheap
bookkeepers, clerks, copyists,--if they stay in school throughout the
years of compulsory attendance. If they drop out earlier, they have
still acquired habits valuable for factory hands of low grade and
miserable pay. They have been taught punctuality, obedience, working
in crowds, listening to instructions. What more does a cheap factory
hand need for beginning work? But of the qualities which fit girls
for home-making and intelligent motherhood, what preparation for the
development of these have our business men been able to imagine and
introduce into the curriculum? True it is that, in rare cases, a
woman serving upon a school board has carried weight enough, by reason
of unusual personality, to override the adverse pressure of other
influences and secure the introduction of some slight beginnings of
domestic science into the schools. But this has occurred in those
schools which needed it least, _i. e._, in the upper grades, which
are not reached by the children of day laborers. For the general
introduction of domestic science into the lower grades, in which the
children of the immigrants spend their sadly few school years, the lack
of space and the cost of equipment on the necessary large scale have
hitherto been effectively deterrent. It is here that Boston stands
forth as a fine example of the effects of admitting to the electorate
in the matter of the schools those who know most of the children’s
needs, the women of the community, including the mothers and the
teachers.
In London, too, for more than a quarter of a century, the women elected
to the School Board have assured to the girls in the board-schools at
least instruction in cooking. As long ago as 1879 the writer enjoyed
the privilege of visiting, with Miss Hill, a member of the board, one
of the cooking-centers in a London board-school to which little girls
came from neighboring schools; and the memory abides quite fresh after
the lapse of so many years, of one little girl who, after cooking peas,
carefully wrapped them in a copy of the London Times to carry them home
to a family whose tastes evidently needed cultivation in the matter of
vehicles for the transportation of soft, moist, warm vegetables.
Due to the preponderance of the interests of business over the
interests of the children in the composition of school boards including
few or no women, is the almost universal absence of adequate school
accommodations. It is not an accident, but a fact of the highest
significance that the two important cities in the United States which
afford school accommodations for all the children throughout the period
of compulsory attendance at school are Boston, where women vote for the
members of the Board of Education, and Denver, where women vote for
all officials. Does anyone doubt that the enlightened policy of Boston
and of Denver is due, in large measure, to the influence of the women
teachers in the electorate? Granted that, in Boston, the Buildings
and Grounds Commission is separate from the Board of Education, the
interest in school questions engendered by the annual election of
members of the Board of Education, and the general participation of
women voters both in the election and in the annual lively campaign
which precedes it, keep the tax-paying public apprised of the inner
condition and life of the schools to an extent impossible by any other
means and actually not approached in other cities.
By reason of the rapid growth of American cities, the provision of
adequate seating facilities for the increasing number of children
constitutes one of the most difficult problems with which boards
of education have to deal. Families move from older portions of a
city where school buildings are first erected, and it is not easy to
foresee and provide for the sudden expansion of one suburb or another.
Moreover, there are influences at work uninterruptedly, bringing to
bear silent pressure adverse to the expenditure of funds sufficient to
provide seats and equipment for all the children. Taxpayers desire a
low tax-rate, not perceiving that cheap primary schools involve in the
long run costly reformatories, and jails, accompanying an untrained and
unintelligent working class. Corporations desire an abundant supply of
available children to work at trivial wages. Children for whom there
is no school room begin to work earlier in New York City despite the
excellent new statutes, than children in Denver or in Boston who are
kept in school to the age nominally required in New York. In New York
city, where the Board of Education is appointed by the Mayor, who in
turn is elected by the suffrages of men only and who does not usually
appoint even one woman to the central board, the deficit in school
seating accommodations has not for many years been less than fifty
thousand. Indeed, no administration ventures to take a school census,
because no administration can afford to let the actual deficit be
accurately ascertained and definitely located. It is politically safer
to pooh! pooh! the estimates of the friends of the unfortunate excluded
children and the children in half-day sessions, than to face the facts
as they would be recorded by a school census.
The inability of boards composed wholly or chiefly of business men to
deal adequately with the business of the board, _i. e._, the education
of the children of the city, is revealed on a vast scale in the case
of the children who fail of promotion. The most overcrowded classes
are the lower ones, and these are congested largely by reason of the
presence in them of children who have been in school long enough to
have been moved on into higher and less crowded classes _if_ they had
been ready for promotion in due order. In London, where women have
voted for the School Board and have served on it for thirty years, the
scope and gravity of the problem of the children who fail of promotion
have long been recognized, and comprehensive efforts to deal with it
are persistently made. In New York, where the same problem has existed
since the foundation of the public schools, it was not discovered, and
then by a woman superintendent, until the year 1903, when the new law
took effect which requires that children, before beginning work in
manufacture and commerce, must be fourteen years of age and must also
have accomplished as much of the work of the curriculum as a child
of twelve years who had failed of no promotions. Several causes of
the failure of children to move forward in due order are removable by
the Board of Education, _e. g._, the half-time classes arising from
insufficient school accommodations; the excessive number of children
carried on the roll of one teacher; the suspension of unruly boys who,
until very recently, were not brought before a magistrate and committed
to a school, but merely turned into the street to waste their school
years in idle mischief or to go to work in violation of the child-labor
law; the dismissal of children by visiting physicians (before the very
recent appointment of nurses who now follow up the children and get
them back into school with the least possible loss of time). Other
causes of the failure of children to be promoted are municipal defects
curable if the Board of Education made effective demand for cure. Among
these is the insufficient provision for hospital care of infectious and
contagious disease. Because scarlet fever and measles are left to be
nursed in the tenements, healthy children of the family spend weeks and
months in banishment from school and fail of promotion through no fault
of their own.
Does anyone doubt that American cities which should follow the example
of London and enlist women of discretion and leisure as school visitors
would make short work of the clogging of the lowest grades by children
who are wasting their own time, that of the teachers, and that of
the children who properly belong in these grades? Could there be a
more unbusinesslike procedure than this defeat of the purpose of the
schools, for want of the personal contact of women with the children,
in work supplementing that of the schoolroom tasks of the teachers? It
is clearly due to the passive rôle assigned to all women except those
professionally engaged in the schoolroom.
The consequences of this clogging of the lowest classes are many and
evil. Among them is the truancy of children discouraged by failing of
promotion, with the attendant probability of arrival in the juvenile
court under the charge of playing ball in the street, or some similar
anti-social offense, or of arrival at the legal age for beginning work
without having accomplished the meager amount of school work required
by the law, an experience which bears most heavily upon those families
in which it is most liable to occur,--those of the very poor.
In this relation, the interests of the teachers and the children are
strictly identical; it is most desirable for the teachers that school
accommodations should be abundant and wholesome; that the children
in one class should not exceed thirty; that salaries for teachers
should be such as to enlist in the profession able and well-trained
persons. To enfranchise the teachers is to give to the children the
best informed possible advocates in the electorate, and to strengthen
every effort made on behalf of the unfortunate children who now fail of
promotion year after year and finally defeat the object of the schools
either by falling out without completing even the required minimum of
work, or else cover each stage long after they have passed the age to
which it is appropriate, and when it has lost all real value for them.
=Protection of Children in Colorado.=--Compared with the children of
New York City the children of Denver appear to be singularly fortunate
in the protection which they receive by means of legislation. A child
in Denver is required to attend school regularly to the age of sixteen
years, unless he is released from this duty by the joint action of the
superintendent of schools and the county judge; and in that case he
must complete the work of the first eight years of the curriculum of
the public schools. A boy released from school attendance is subject to
the supervision of the two authorities mentioned, and can work only on
condition that his record continues satisfactory to them, being kept
on the roll of the juvenile court, not as an offender, but as a ward
of the court. If he should be required or permitted by an employer to
work longer than eight hours in a day, or at an occupation injurious
to his health, it is within the power, and is clearly the duty of the
superintendent and the judge to cancel his permit and return him to
school or require a change of his occupation.
Where the great body of children in a city are kept in school until
they reach the age of sixteen years, and all must finish the work of
the first eight grades of the public schools, the rising generation
goes into the bread-winning occupations with an unusually high level of
efficiency of mind and body; and where all the wage-earning children
under the age of sixteen years are virtually wards of the court, the
exploitation or demoralization of children by means of their work
becomes almost impossible.
In Colorado, children under the age of sixteen years enjoy, also, an
unusual degree of protection by reason of that brief and comprehensive
statute which renders any person who contributes to the delinquency
of a child liable to a fine or imprisonment not exceeding one year.
Under this recent statute, the dealer who sells a cigarette to a boy,
the mother who sends a child to fetch beer, or who permits him to read
dime novels so that he is led to run away, the telegraph operator who
sends a boy to a disreputable house to deliver a telegram or message,
the coal-train conductor who permits a child to “hop a train” or to
pilfer coal,--one and all may be brought into court, placed under a
suspended fine for the first offense, and sent to jail for a year if
any continue to offend. In practise, more than a score of fathers were
sent to jail during the first half of the year 1904, for contributing
to the delinquency of their children. Hardship to their unoffending
wives arising from loss of the earnings of the breadwinner was obviated
by arranging to have the offender in jail only from Saturday noon to
Monday morning, the remainder of the sentence being suspended.
It is the common experience that statutes of exceptional rigor for the
protection of children are apt to remain dead letters, and this has
been sadly true of child-labor laws, where powerful corporations have
secured the removal of officials who were conscientious and efficient
in enforcing such measures. How, then, is it to be accounted for that
the county judge of Denver has for years enforced penalties upon saloon
keepers, cigarette dealers (irrespective of their relation to the
brewers, the whiskey trust and the cigar trust), telegraph operators
(agents of two of the most powerful corporations, and the largest
single employers of boys in the Republic); and has, nevertheless, not
only not been retired from office but, on the contrary, was the only
candidate upon whom every political party in Denver united at the last
election? Citizens of Denver assert that this significant fact is due
to the voting mothers, teachers and other interested women in Denver.
It is a part of the recent history of the city that, when the corrupt
political machine found Judge Lindsey unbending in his opposition,
it dropped his name from the proposed list of nominees for the next
election. But when the women of Denver heard of this, they held
meetings and made known their will in such effective manner that, when
the day came, no other name appeared as candidate for the office of
county judge upon the ballots of any of the seven political parties
which complicate elections in that lively city.
Opponents of the extension of the franchise to women have pointed out
that political corruption in Colorado still exists, despite the fact
that women have for ten years been admitted to the electorate. But
in so doing, they mistake the direction in which ethical gain is to
be expected to result from the enfranchisement of women. Political
corruption is not a matter of sex; it results from the unethical basis
of our business activities, and cannot be abolished until that basis is
altered and made ethically sound. The ethical gain which may reasonably
be expected from admitting women to the electorate is the extended
activity of those members of the community who are primarily interested
in the nurture and safeguarding of the young.
A suggestive comparison is that between the cherishing and nurture
afforded to the children of Colorado by means of legislation due to the
voting constituency of women, and the unsheltered state of the children
of Georgia, where women are in every way excluded from public life, and
where boys and girls at any tender age are wholly without protection
from the demands and the cruel neglect of cotton-mill owners, as is
indicated in the decision of the Supreme Court of Georgia in the case
of the Canton Cotton Mills.
Equally suggestive is the comparison of the defenseless position of
girls in South Carolina, where women have no political power and the
age of consent is ten years, with the careful safeguarding of girls
in Colorado. It is not accidental that one of the first measures
introduced into the legislature of Colorado after women were elected
to that body, was the bill successfully carried by a woman senator,
raising the age of consent to eighteen years, at that time higher
than the corresponding law of any other state. Such a law affords
protection to the boys and youths of the community which they are
wholly unable to estimate. It saves them those temptations which beset
youth in communities in which, as in North Carolina, the offense of
tempting girls carries but a slight penalty, if any, with no certainty
of enforcement against a white man. When the age of consent is raised
to eighteen years, this is a protection not only to all the young
girls and boys in the community, it is a protection to the community
itself against the children of ruined girls. Denver needs no foundling
asylum like that institution which confesses the disgrace of New York
City. It is at the opposite pole from the legally sanctioned and
medically supervised vice of the cities of Continental Europe, with the
accompaniment of lock hospitals and foundling asylums. It now remains
for Colorado to deal effectively with the quacks and their newspaper
advertisements, and to substitute for their polluting influence wise
instruction in physiology, biology and morals, in the public schools.
Never before in human history has the right of the young to pure
living, the claim of the adolescent to guidance and restraint, the need
of the child for nurture at the hands of father, mother, school and
the community been recognized as in Colorado to-day. Never have the
good influences of good homes received such reënforcement by means of
legislation.
These gains have not been made because the subject matter ever
developed political issues. Elections have not hinged upon them. But
the accent has been shifted; the emphasis is different. It appears
that, on the whole, the interests of children and youths are unusually
well guarded in a community whose affairs are all carried on by men and
women together.
=Advantages of the Recognition of the Right of Women to the
Ballot.=--The slight contribution of time, thought and effort required
of all the voting citizens, if spent by all, not merely as at present
by men, may reasonably be expected to prevent the need of much of
the remedial and reformatory work now demanded of individuals for
individuals. Infancy, old age and the misfortunes of congenital
defectives, constitute a legitimate claim upon the leisure and charity
of women, as of men. But the endless, cheerless task of attempting
to repair by philanthropic methods the wreckage due to bad laws,
which women have no part in making, and the lax enforcement of good
laws, is a burden which should no more be inflicted upon women than
the task of enforcing demands for industrial improvements in the
lot of workingwomen arbitrarily disfranchised should be saddled upon
workingmen.
Reference has been made to the value of the addition of the women
teachers to the electorate. It remains to point out a distinct
disadvantage arising from their continued disfranchisement. It is, for
instance, an anomaly not likely to remain permanent that many able and
successful teachers of civics and political and industrial history
to boys and young men are women who are themselves not voters. The
effect upon the minds of the pupils must be highly confusing. They seem
forced to the inference that these subjects are of minor importance,
since they can be taught by persons who are not permitted to perform
the duties and functions which form the real content of the teaching.
But what could be more unfortunate for the Republic than to inculcate
in the minds of coming voters any idea calculated to minimize the
importance of the subjects of civic duties and political and industrial
history?
In an essay strongly adverse to the admission of women to the
electorate, published in 1893 by Mr. Goldwin Smith, there occurs the
following passage: “Woman’s Suffrage is a change fraught with the most
momentous results, not only to the commonwealth but to the household.
Let Wyoming and New Zealand try it, say for ten years. The success
of the Wyoming experiment is publicly proclaimed and the universe is
exhorted to do likewise by Wyoming, whose voice is now that of the
female voters. Private accounts are not so favorable, nor have the
neighboring states, which must have the clearest view of the results,
been induced to follow the example. To Wyoming for the present, Woman’s
Suffrage in the United States remains confined. The New Zealand
experiment will be more satisfactory, though New Zealand, having no
warlike neighbors, does not run the same risk of emasculating her
government which is run by a European State. If at the end of ten years
it appears from the two experiments that legislation and government
have become wiser, more far-sighted, and more just, without detriment
to the peace and order of the home, let the world follow the example,
and be grateful to those by whom the first experiment was made.”
It is worthy of note in this connection that, according to the latest
census of the United States, Wyoming heads the list of all the states
when they are graded according to the number of children between the
ages of ten and fourteen years who are illiterate. Including the
Indians, Wyoming is charged with but 72 such children. Inquiry has
elicited the fact that this is due directly to the efforts of the women
voters, who long since worked out a plan by which traveling teachers
are sent to remote portions of the state, where scattered children are
gathered from ranges and ranches until they can read, when the teacher
proceeds to another post and the process is repeated with another
gathering of children. In order that the children may not forget what
they have learned, traveling libraries are sent in the wake of the
teachers.
It is respectfully submitted that the period suggested by Professor
Goldwin Smith has elapsed; that the three neighboring states,
Colorado, Utah and Idaho have now all followed the example of Wyoming;
that legislation has become wiser, more far-sighted and more just
without detriment to the peace and order of the home. Moreover, the
Australian Federation and South Australia have followed the example of
New Zealand. What is to be gained by farther delay?
Within the family an interesting and ennobling modern relation
due to the education of women is the mutual sympathy, respect and
understanding between the college-going youth and his college-bred
mother. The unconscious contempt, mitigated by affection, felt by
Pendennis at Oxford for Helen at home in the country, is alien to the
experience of sons whose preparation for college has been guided by the
joint counsels of both parents. On a larger scale the same seriousness
of respect of adult sons for their mothers may be noted even by casual
travelers in states in which women vote on all subjects. Something
of this greater unity of interest between mothers and their adult
sons and daughters in the performance of a common duty of the highest
importance, may reasonably be expected in humbler walks of life with
the extension of the ballot to women in the great industrial states.
At present, this form of common interest exists among the members of a
family of working-people chiefly where the wife has, before marriage,
been a wage-earner and member of a trade-union, and after marriage
continues her interest as an active member of the Union Label League or
the Women’s Trade Union League. It would surely be more wholesome for
the family and the Republic, to extend the common interest of mother
and adult sons and daughters to the affairs of the whole commonwealth,
than to leave it confined exclusively to the industrial affairs of life.
It is now more than twenty years since the writer printed in the
_International Review_ a paper on “The Law and the Child” in which
it was pointed out that the two agencies which had chiefly modified
the life of the children of the working class during the nineteenth
century were the development of steam-driven machinery, which had made
the labor of children available on a large scale in manufacture, and
the emergence of women from the exclusively domestic life of former
centuries to a participation, first in the education, and later in
the philanthropic and educational work of modern times. During the
intervening years since the publication of that paper the task of
obtaining or promoting legislation on behalf of workingwomen, girls
and children, or of securing its enforcement, has never ceased to be
one of the deepest interest. The progress achieved, however, is so
slight, the obstacles in the way of any real protection for young
children are still so great, in all the industrial states, that it
has become the settled conviction of the writer that, until women are
universally admitted to the franchise, direct measures involve almost
certain illusion and disappointment. This conviction is confirmed, not
merely by the affirmative experience of Colorado, but by the negative
experience connected with the effort to establish by statute the right
to leisure of women and children in Illinois, where women vote only
for the trustees of the state university. It is still farther confirmed
by the overwhelming disparity between the advantages gained for
themselves by workingmen who are voters, compared with the excessive
difficulty involved in making any gain whatever, during the same period
of twenty-years, on behalf of workingwomen and children.
For years the friends of the young clerks in retail stores have striven
to obtain for them the poor privilege of being seated when at work,
and with what success? In many states, laws have been enacted making
diverse provisions for seats in stores. In New York City, for instance,
the law has required, since 1896, that one seat be provided for every
three clerks. In some stores the seats have been supplied for the third
floor, because the clerks were chiefly employed upon the first. In
many stores chairs are abundantly supplied in the fitting-rooms of the
cloak, tailoring and dressmaking departments, for the use of customers,
and are included in the general reckoning according to which there are,
on the premises, chairs in the proportion of one to three clerks. In
still other cases, chairs or seats are wholly absent from the notion
counters and from the counters or tables in the aisles of the stores
where half-grown girls serve as sales-clerks. The absence of the seats
is suavely explained by the fact that the employees are there only
temporarily. But their employment lasts day after day, and the pretext
is utterly transparent. In still other places, seats are provided
ostentatiously, but girls who use them are censured or dismissed. All
these variations of the art of evading the statute have been found by
the writer in reputable establishments in New York City.
It has been shown in another chapter that the power of the Retail
Dealers’ Association is such as to prevent the appointment of special
mercantile inspectors as provided for by the mercantile employees’
law. That classic example illumines the whole subject. On one side are
wealth, the prestige of the large employers, and the effective control
of the enforcement or non-enforcement of laws;--for the employers
not only vote, but exercise power as large potential contributors to
campaign funds. On the other side are youth, ignorance, inexperience,
poverty, and that irresponsibility which arises from the hope of
marriage and resultant escape from the inconveniences, great and small,
which attend any given occupation. It may be said that the men who
are clerks represent the interests of the women and girls and should
be able to secure inspection of mercantile institutions and stores.
But they are increasingly hampered by the pressure of competition of
the very women and girls whom they are thus asked to protect. They
have their hands more than full with their own difficulties, and
cannot reasonably be asked by the community to fight the battles of
their arbitrarily disfranchised female competitors. Nor do competing
workingmen by any means always recognize an identity of interest with
the women beside whom they work. It is only very recently that they
have gone so far as to welcome them to the trade unions.
The slow and ineffectual steps towards the establishment of an adequate
force for mercantile inspection, in a state in which the principle of
state inspection is so long established and clearly recognized as in
New York, are obviously due to the absence of a voting constituency
behind the demand for such inspection.
Because, in all great industrial states, women are disfranchised,
except for certain strictly limited powers in connection with
educational affairs, the industrial disadvantages of the minor
wage-earners are aggravated by this powerlessness of the adult
workingwomen to make the needs of the whole class felt, by those
methods which are slowly and gradually but surely improving the
position of workingmen; and are no less aggravated by the equal
political impotence of those other women who are the natural friends
and protectors of the young workers,--the women of wealth, leisure,
intelligence, and philanthropic interest.
It has been made sufficiently clear in the foregoing chapters that the
exertions of the Retail Clerks’ Protective Association, the Working
Women’s Societies, the Consumers’ League, and Church Association for
Improving the Condition of Labor, and the League of Women Workers
have availed little for changing industrial conditions affecting
workingwomen and children compared with what voting workingmen have
been able to do for themselves.
The burden of the tale of this book is the difficulty of enforcing
legislation on behalf of children and minor workers. Their position is
zero minus. The element which, under normal conditions, is primarily
concerned with their interests consists of the adult wage-earning
women, the mothers and the teachers, with philanthropic women of
education and leisure. So long as these either shirk the duty of
securing and using the opportunity to vote, or are debarred from doing
so, the difficulty of enforcement of protective laws must continue.
The exceptional disadvantage attaching to the position of minor working
girls is such as to call for humane exertion on the part of all who
can in any way contribute to their welfare. And the response is
found in the rapidly growing series of philanthropic undertakings of
which working girls are the objects. While the Young Men’s Christian
Associations aim to enhance the efficiency of their beneficiaries, by
furnishing instruction and facilities for systematic exercise, bathing
and wholesome recreation, the corresponding organization dealing with
minor working-girls provides, not only these aids to efficiency, but a
variety of sustaining and curative measures in addition. What is the
meaning of the homes for convalescent working-girls which are springing
up in so many directions? Is it not that working-girls are being worn
out and used up at a rate such that no savings of their own brief
working period could possibly provide for their needs? And these homes
are without exception overcrowded (or burdened with waiting-lists)
largely by sufferers from nervous prostration or pelvic disorders
induced by long hours of work and needless standing arbitrarily imposed
in connection with their work. Boarding houses for working girls,
furnishing board at four and five dollars a week and supplying a
modicum of comforts paid for by philanthropic subscribers, exist in a
score of states. Why all this provision for which nothing corresponding
is asked on behalf of young men? Is it not due to the general feeling
that the morals of working-girls must be buttressed, their wages eked
out in the interest of society itself? Rescue homes and shelters
tell their own chapter of the story of insufficient pay coupled with
overwork and temptation; and this chapter is supplemented by the rapid
growth of foundling asylums, and committees for finding places in
friendly families for mothers with one infant each.
It may be many years before any of the efforts now made on behalf of
working-girls can be safely relaxed. But why should all this effort
be confined, in their case more than in that of young workingmen and
boys, to the forms of philanthropy? Why should not effort on their
behalf go forward on two feet, the philanthropic and the political
together, as the movement of workingmen goes forward? Why should it
limp haltingly along upon the one foot of philanthropy? Is it not quite
possible that, with the extension of political power to all the women
in the community, such improvement in the conditions of employment must
result that the minor wage-earners will be more nearly self-supporting,
less often placed in the humiliating position of working and yet being
objects of charity? For any body of wage-earners to be disfranchised
is to be placed at an intolerable disadvantage in all matters of
legislation.
It has been shown that in states in which women have been admitted to
the electorate, certain substantial advantages have accrued to the
schools and the children. It is entirely reasonable to infer that
with a farther extension of the franchise to women, a similar gradual
improvement in the lot of the minor wage-earners will come about, and
that these improvements cannot be achieved so promptly or so lastingly
in any other way.
While leisure has been increasing in the class of prosperous,
home-keeping women, the need of their help, sympathy and protection
has been growing among the young workers. Since the leisure of
prosperous women is due largely to the labor of young wage-workers
(who are engaged chiefly in the food and garment trades, the textile
industries and that retail commerce which lives by the patronage of
home-keeping women), it behooves the fortunate to assume their full
share of the duty of making and enforcing laws for the protection of
these young wage-workers. But this they can do only when they perform
all the duties of citizenship, voting and serving on public boards and
commissions when elected or appointed to them. It is because women are
less under the stress of competitive business, because they do, in
fact, represent children and youth, that their vote is needed.
One alleged form of philanthropic work in behalf of working girls would
certainly go out of existence if women were added to the electorate,
namely those so-called reformatory institutions under sectarian
management in which for years at a stretch girls are detained without
trial, kept at work for the benefit of the institution or of the
ecclesiastical organization under whose auspices it is conducted. Only
the members of a disfranchised class can be subjected to treatment such
as this.
=Right of Women to a Share in the Enactment of Marriage and Divorce
Laws.=--A subject of the highest ethical importance is kept effectively
under discussion by the unwearied efforts of the Divorce Reform League
to obtain the enactment by Congress of a uniform law dealing with
marriage and divorce throughout the Republic. No other law touches
in the same manner the welfare of every man, woman and child in the
nation, as the law governing marriage and divorce. No other law,
therefore, so peremptorily requires the assent of every citizen. Men
and women are alike affected by the legal basis of family life; and
since the points of view from which the subject is approached by
men and women are fundamentally different, that law alone can be an
essentially just and righteous one which is so framed as to satisfy the
needs of both men and women and to rest upon their agreement.
For a federal law, at the present time, there is no machinery by which
the assent of women can be obtained. Such a law, therefore, if enacted
while the present suffrage restrictions remain, must be the product
of the will of far less than half of the adults whom it would affect.
However wise the measure recommended might appear in the abstract
to be, the manner of its adoption would constitute an intolerable
injustice.
It is sometimes urged by the advocates of the congressional measure
that the method of securing the adoption of legislation by the action
of the separate states is injuriously slow; that evils attending the
present variety of legislation are such that haste is required. To
this it may, however, be replied that the machinery of legislation in
the states responds more quickly and sensitively to the will of the
people than does the machinery of federal legislation. If, therefore,
the people of the various states are slow to alter their laws governing
marriage and divorce, this may arise from the fact that the existing
laws are more or less adapted to the life of the people in the states.
If they are not so adapted, the first preliminary change should
logically be the extension of the electorate to include the non-voting
elements of the population now silently affected by the laws. That
being done, a just basis would have been formed upon which to proceed
with farther changes in legislation in the individual states. If it
be true that the evils arising from the existing chaos of legislation
affecting marriage and divorce in the different states have become, or
are becoming intolerable, surely it is fair to infer that these evils
may be due to the enforced silence in matters of legislation of half
the people affected by them.
The need of haste is a strange reason to assign for the transfer of
the power to legislate upon the most intimate relation of human life,
from those governments which are most easily controlled by the people
affected, to that which is farthest removed from them.
Four states are now in a position to deal with this or any other
question on a basis of entire justice, namely those states in which
men and women alike vote; many other states possess all the needed
machinery for submitting important measures to the vote of the people;
and it is perfectly easy to provide, in any given case, that women may
vote on the question submitted. There is obviously more need for such
submission in the case of a bill dealing with marriage and divorce than
in the case of any other subject. Not until the responsibility for the
change can be shared by the whole adult population should so grave
a change be undertaken as the transfer of the power of legislation
upon this most vital of all subjects from the states to the federal
government.
CHAPTER VI
THE RIGHTS OF PURCHASERS
In any given community every person is directly or indirectly a
purchaser. From birth to death choice is made for us or we ourselves
choose objects of purchase daily, even hourly. As we do so, we help to
decide, however unconsciously, how our fellow men shall spend their
time in making what we buy. Few persons can give much in charity;
giving a tithe is, perhaps, beyond the usual custom. But whatever
our gifts may be, they are less decisive for the weal or woe of our
fellow beings than are our habitual expenditures. For a man is largely
what his work makes him--an artist, an artisan, a handicraftsman, a
drudge, a sweater’s victim or, scarcely less to be pitied, a sweater.
All these and many more classes of workers exist to supply the demand
that is incarnate in their friends and fellow citizens, acting as
the purchasing public. All of us, all the time, are deciding what
industries shall survive, and under what conditions.
Obviously the purchaser ultimately decides all production, since any
article must cease to be produced if consumers cease to purchase it.
The horsehair furniture of the early part of the nineteenth century
has now virtually ceased to be manufactured. On the other hand, any
article, however injurious to human life and health the conditions of
its production may be, or with whatsoever risk they may be attended,
continues to be placed on the market so long as there is an effective
demand for it; _e. g._, nitro-glycerine, phosphorous matches, and mine
products of all kinds.
This great purchasing public, embracing the whole people, which
ultimately decides everything, does so, on the whole, blindly, and in a
manner injurious to itself, and particularly to that portion of itself
which is engaged in production and distribution.
It would seem an obvious right of the purchaser that the food which
he buys at the price asked should be pure and clean; that the garment
purchased of an entirely reputable dealer should be free from poisonous
dyes, vermin, and the germs of disease; and that both food and garments
should leave his conscience free from participation in the employment
of young children or of sweaters’ victims.
Yet these seemingly obvious rights were, perhaps, never farther from
attainment than to-day, in the opening years of the twentieth century.
Adulteration of foods has never, in the history of the human race, been
carried on upon a scale so vast as at present. The sweating system
with its inevitable accompaniment of filth and disease conveyed in the
product, persists and increases in spite of sixty years of effort of
the philanthropists and the needle-workers to check it.
The oldest recognized legal right of the purchaser is to have his
goods as they are represented. To sell goods under false pretenses
has long been an offense punishable with more or less severity. But
of late this right, if it was ever widely enforceable, has become
largely illusory. In the vast complications of modern production
and distribution, conditions have arisen such that the individual
purchaser at the moment of buying, cannot possibly ascertain for
himself whether the representation of the seller is accurate or not.
The rule _caveat emptor_ fails when the purchaser is prevented by the
nature of the case from exercising _enlightened_ care. Thus in the case
of adulterated foods, or of foods exposed to filth or disease in the
course of preparation, and in the case of garments sewed in tenements,
the purchaser is at the mercy of the producer and the distributer, and
is debarred from exercising care in these respects at the moment of
purchasing.
Not only may a department store advertise with impunity in a dozen
daily newspapers that “all our goods are made in our own factory,”
when it neither owns nor controls a factory, but the sales-clerks
may safely reiterate the assurance over the counter in regard to an
individual garment which, in truth, was finished in a tenement house
by a bedridden consumptive. The machinery for identification is so
imperfect, the difficulties in the way of tracing a garment are so
many and so subtle, that the law has no more terrors for a mendacious
sales-clerk than for the reckless advertising agent, or for the
business office of those daily papers which thrive upon the wholesale
mendacity of retail commerce.
Yet the demand for opportunity to obtain garments and food which may be
purchased with a clear conscience grows imperative, has become, indeed,
an ardent and abiding desire of enlightened purchasers who long for
some trustworthy assurance that they are free from participation in
the employment of children, in starvation wages and in the continuance
of the sweating system. Granted that this new aspiration may be far
from general, far from achieving its own gratification on any large
scale, the mere fact that it is present in the minds of thousands of
purchasers involves a new ethical standard on their part and must, in
the course of time, bring fundamental changes throughout wide reaches
of production and distribution.
The relation of this aspiration to certain legislation forms the
subject of this and the ensuing chapter.
=Ignorance of Conditions of Production.=--The most serious obstacle
to the realizing of this aspiration is the willing ignorance of the
masses, particularly of the masses of women who constitute the direct
purchasers of the largest portion of the articles used for personal
consumption. Even the producers, themselves, suffer so keenly from the
lack of intelligence of their customers, that they are fitting out
museums for the purpose of educating them, the Commercial Museum of
Philadelphia being a promising type of such undertakings.
Recognizing no duty in this matter, asserting no right, the
unintelligent purchasers tempt the greed of producers and distributers.
Devoid of enlightened imagination, these purchasers exert no stimulus
favorable to the honest manufacturer.
Because the germs of the deadliest diseases are not discernible by the
eye, because they have no conspicuous and offensive smell, a shopping
public devoid of imagination remains easily unaware of their presence
on the counters of reputable merchants. In the same way, ices and
syrups colored in tints and shades unknown to the fruits and flowers
of nature, arouse no imaginative wonder. Peas of brilliant green in
January, corn taken as yellow from the can in March as from the ear in
July, these impossible objects are credulously accepted by the buying
multitude. Why? Because it prefers not to know the truth.
Because the purchasing public, on the whole, prefers at present not
to know the facts, we are all in danger of eating aniline dyes in
tomatoes, jams, jellies, candies, ices, fruit syrups, flavoring and
coloring extracts; and salicylic acid in our canned peas and other
vegetables which we insist upon having preserved of midsummer hue at
midwinter. We wear more or less arsenic in our print goods and the
germs of tuberculosis and of countless other diseases in our outer
garments.
A physician who visits among the poorest of the poor in New York City
recently found a woman in the last stages of consumption, making, as
she lay propped among her pillows, little boxes for wedding cake,
licking the edges to moisten the gum to make it hold together. The
teacher of a class of defective children in the same city, while
visiting the home of a lad whose left arm and right hand had been
amputated by reason of cancerous growths, found the father suffering
from tuberculosis, but making a trivial addition to the family income
by cracking walnuts (for which he was paid seven cents a pound if no
kernels were broken and three cents a pound if his work was imperfect).
The father complained that he lost much time in fetching and carrying
the nuts and kernels between the store and his home, and could crack
but fifteen pounds in three days.
The individual purchaser would doubtless prefer to eat nuts cracked
in a workroom not frequented by a father afflicted with tuberculosis
and little son mutilated by the ravages of cancer. The individual has,
however, at present no method of enforcing this reasonable preference.
We are all much in the position of the Italian immigrants in any of our
great cities. They support at least one store for the sale of imported
maccaroni, vermicelli, sausage (bologna and other sorts), olive oil,
Chianti wine, and Italian cheese and chestnuts. These articles are
all excessively costly, by reason of transportation charges and the
import duties involved; but the Italians are accustomed to using
them and prefer a less quantity of these kinds of food to a greater
abundance of those cheaper and more accessible supplies by which they
are surrounded. The pitiful result is that the importer buys the least
quantity of the Italian produce requisite for the purpose of admixture
with American adulterants. The most flagrant example of this is,
perhaps, the use of Italian olive oil, of which virtually none really
pure is placed upon the market for sale at retail. What the Italian
immigrant gets is the familiar Italian label, the well-known package
with its contents tasting more or less as it tasted at home in Italy.
What the actual ingredients are he knows no more than an American knows
what he is eating when he places his so-called butter or honey upon
his so-called wheat-cakes. The demand of the Italians in America for
Italian food-products, although large, persistent, and maintained at
a heavy sacrifice on the part of the purchasers, is not an effective
demand, because the immigrants have neither the knowledge nor the
organization wherewith to enforce it, while the legislation of the
various states affords them virtually no redress.
The privilege of remaining thus unintelligent costs the shopping
public uncounted thousands of lives and other uncounted thousands of
invalids. But it is a privilege dear to modern crowds. Indeed, the
preference for things which come from afar, whose industrial history
cannot be known to the purchasers, appears to be almost universal.
Thus the writer has seen in a filthy hovel, in the grimiest street
in Chicago, Sicilian peasant women sewing into the waistbands of the
cheapest little knee pants, tags bearing the words _New York_, because
the purchasers like the illusion that all garments sold in the United
States are made in New York. The same illusion is cherished as to
numerous food products--the purchaser will have it that they came from
some other place than their real source. Figs from California must be
labeled Smyrna; cotton seed oil from South Carolina must bear French
or Italian labels calling it olive oil.
Why all these queer mendacities? Because the purchasing public
will have it so! Because the number is still sadly small of those
who perceive the duty to know their sources of supply and assert
their right to know them; who are willing to sacrifice that deadly
privilege of remaining ignorant, which the careless majority exercise
at frightful cost of disease spread among innocent families, and of
poverty, illness and death among the workers. The willingly ignorant
purchaser carries a heavy share of the guilt of the exploiting
manufacturer and the adulterating distributer.[12]
=Some Typical Purchasers.=--How inadequate is the individual demand
of a single wide-awake customer, is well shown by the experience of
a conscientious shopper of the writer’s acquaintance. Deeply moved
by an eloquent appeal on behalf of the sweaters’ victims and their
sufferings, she determined to free her own conscience by buying only
goods made in factories and workrooms, never in home sweat-shops. She
began her search for such goods in the leading department store in
which she had always fitted out her boys for school. The sales-clerk
assured her that, “All our goods are made in our own factory; we
handle no sweatshop goods.” Being a canny person and well-instructed,
she asked for a written assurance of that fact signed by a member
of the firm, to be sent home with the goods. They were never sent,
although this was an excellent customer whom the firm was in the
habit of obliging if possible. This process she repeated in several
stores and outfitting establishments, until it became clear to her
mind that, alone and unaided, she could never free her individual
conscience. The loneliness of this enlightened purchaser is one of the
instructive phenomena of our times. The great, careless, thoughtless
mass of American men and women have performed the act attributed to
the ostrich. Hiding their minds in the pleasanter oblivion, they have
pretended that the enemy was not present.
During the long period in which there had not yet been discovered a
practicable method of dealing with the sweating system, many otherwise
intelligent people deliberately adopted a policy of ignoring conditions
which they saw no way of improving. Thus it was once the fortune of
the writer to address a club of unusually influential women, on the
conditions of work in the needle-trades in Chicago, as they existed
during the smallpox epidemic of 1894. The story was a painful one of a
disorganized trade, pauperism of skilled workers, destruction of home
life in the tenements, incompetence in the Board of Health, filth,
disease and death. The members listened with visible impatience. In
the course of the discussion which followed one member said: “This
club exists for the purpose of education and recreation. Listening to
the recital this afternoon certainly cannot be regarded as recreation.
Unless the speaker can offer a method by which we may participate
in some practical effort for the improvement of conditions in the
needle-trades, our way of spending this afternoon can have no claim to
be regarded as education. For my part, I find it satisfactory to buy
garments wherever I find them attractive, and then send them to the
steam-cleaner.”
Manifestly this individualistic solution of the problem of the
needle-trades was insufficient, even from the point of view of the
speaker, for any ordinary cleaning of those days would certainly not
have reached the germs of smallpox or of scarlet fever; and few persons
share the willingness of that speaker to buy goods trusting to the
efficacy of subsequent disinfection. Since, however, there was at that
time no method available which could be offered to the critic, the
writer was left defenseless. The community has borne both the risk of
infection and the guilt of participation in maintaining the sweating
system with sadly complete equanimity, far more amiably, indeed, than
it has endured the painful process of enlightenment.
Among all the cherished forms of ignorance, none is more tenacious
than that of the prosperous purchaser able and willing to pay for the
best that the market affords and convinced that, whatever the sorrows
of purchasers of ready-to-wear goods, he is safe, because he gets
his garments only of the merchant tailor and pays a high price for
the assurance that they are made up under conditions which guard him
against disease, and enable the merchant tailor to pay the working
tailor a fair price for his labor. But this customer is really no
better off than the well-instructed club woman making her ineffectual
search for righteously made ready-to-wear goods for her boys. For
example, as factory inspector of Illinois, the writer was one day in
search of a cigarmaker who was said to have smallpox in his family,
during the terrible epidemic of 1894. Quite by accident a tailor was
discovered newly moved into the suspected house, and not yet registered
with the department or with the local board of health. In this tailor’s
shop, which was his dwelling, there was a case of smallpox. In the same
shop there was, also, a very good overcoat, such as gentlemen were
paying from sixty to seventy dollars for in that year. In the collar
was a hang-up strap bearing the name of a merchant tailor in Helena,
Montana. Now, that merchant tailor had had, in his store window in
Helena, excellent samples of cloth from which the customer had ordered
his coat. The Helena tailor had taken the necessary measurements and
had telegraphed them, together with the sample-number of the cloth,
to the wholesale house in Chicago, of which he was an agent. The
wholesaler had had the coat cut and had sent it to the kitchen-tailor
in whose sickroom in an infected house in Chicago it was fortunately
discovered. But for the happy accident of the finding of the tailor
during a search for an entirely different person, the purchaser
in Helena, Montana, would surely have bought smallpox germs in his
expensive coat.
Beside this fatuous belief that his custom-work, because it is costly,
is made under clean and wholesome conditions, the purchaser of
expensive garments usually comforts his conscience with the assumption
that the working tailor who makes them receives some substantial
share of the high price in the form of wages. While it is true that
the tailors who do custom work have a more stable trade union than
workingmen in the ready-to-wear branches, and command, therefore,
somewhat better pay, it is also true that the tailor in this case, as
in scores of others during the same epidemic, was driven by extreme
poverty to conceal the dreadful fact that he had smallpox in his
family, through fear of losing a few days’ or a few weeks’ work. So the
high price of the coat did not even entitle the customer in Helena,
Montana, to an easy conscience on the score of the wages paid to the
people who worked upon it.
In the matter of wages, however, there is no longer an available excuse
for ignorance on the part of the purchaser as to the wages paid for
the manufacture of his garments; and to-day, he who remains ignorant
upon this important point does so by his own choice. For the tailors
were already, at that time, offering a label attached to goods made
under conditions of pay and of hours of work satisfactory to both the
employer and the worker.
=Efforts to Enlighten Purchasers.=--Clearly the first step towards
the assertion of the rights of the purchaser is the acquisition
of knowledge; and it is an idiosyncrasy of the present industrial
situation that a large part of the effort exerted for the enlightenment
of purchasers has come, not from themselves, but from manufacturers,
physicians and philanthropists (in the form of restrictions upon the
sale of drugs, or recommendations in favor of municipally prepared
vaccine, anti-toxine, etc.), from public authorities in the shape of
official reports, from the Consumers’ League in its endeavor to form a
large and stable body of organized purchasers, and finally and chiefly
from the trade unions, disseminating information in the interest of
better working conditions for themselves.
Among all these agencies, the press and the advertising merchants
might be expected to appear. These have, however, little claim to
any educational quality in their endeavor. Their exertions have been
directed distinctly not toward education. Rather they have been meant
to stimulate, to persuade, incite, entice, and induce the indifferent
to purchase. Much of the current advertising, of which the patent
medicine advertisement may be taken as the type, is aimed directly
at the ignorance of the purchaser. Nearly all of it is aimed at the
cupidity of the public and it, therefore, offers cheapness as the one
great characteristic. It is immoral rather than ethical.
Such measures as exist for the inspection and testing of food products
have usually been obtained either by hygienists and physicians for
philanthropic purposes, or by producers who were furthering their own
interests while nominally promoting those of the purchaser. Such is the
requirement that oleomargarine shall be colored pink when offered for
sale in certain states, nominally for the protection of consumers, who
may not care whether the substance which they use for frying or for
spreading on bread is made of the milk of the cow or the fat of the
steer. The people who obtained the enactment of this law were not the
outraged consumers of oleomargarine, demanding to be protected against
it, but the farmers whose butter market was threatened by the invasion
of the oleomargarine.
Similar protection to American purchasers of foreign food products
is afforded by the federal bureau with its laboratories for the
investigation of imported articles, nominally in the interest of the
public health, but really in the interest of the American producer,
whose adulterations are left by the federal government to the varying
efficiency and honesty of local boards of health, and state chemists,
and food and dairy commissions.
In consequence of these diverse and multifarious exertions on behalf of
the purchasers, there have grown up regulations of strangely unequal
effectiveness. Thus in many cities the sale of a small number of
well-known deadly drugs is hedged about with precautions intended to
prevent murder and suicide by the ancient method of poisoning. In some
cases, the purchaser of such drugs must be identified, and must state
the purpose for which the purchase is made. Arsenic and strychnine,
having an old established reputation as possible enemies of human
life, and but slight profit for the retailer in the quantities in which
they are sold to individual purchasers, are surrounded by precautions;
and the package may even have to be conspicuously labeled with skull
and crossbones, so that no careless third party can unintentionally
come to harm.
Meanwhile the milk sold by the grocer next door to the druggist may
be conveying typhoid germs in every bottle, and his cream may be so
thickened with corn-starch and other substances as to starve any baby
depending upon it; or serve as a gradual poison to a diabetic patient
conscientiously endeavoring to follow his prescribed diet of fats and
to avoid starch in all its forms. The products of the dairy have an
excellent reputation as bases of wholesome feeding for infants and
invalids; the purchaser is not habitually on guard against them, as
he is forewarned against the corner druggist’s arsenic and strychnia,
nor has he any available means of personal self-defense. The typhoid
germ and the thickening substance added to his cream and milk he cannot
discover for himself at will. He must take his chances of protection
through the intelligence and faithfulness of the municipal officials
who deal with the milk supply. The constant appalling death rate of
infants who depend upon milk, in all great cities, demonstrates the
insufficiency of this agency, under present conditions.
Only the intelligent farmer, managing his own dairy, or the coöperative
society owning its dairies and buying its own product, can be certain
of avoiding poisons, quite as dangerous to life and health as
strychnia and arsenic, with which American society has not yet learned
to deal by any effective summary procedure. The experience of some
of the English cities, and of Rochester, New York, seems to indicate
that the difficulties of the milk supply can be met only by the
institution of municipal milk, analogous to the municipal water supply;
and municipal provision of all useful drugs, analogous to the present
municipal supplies of vaccine and anti-toxine serum.
On the other side from the dairyman, the druggist’s next door neighbor,
perhaps, is a tailor, who may be actively engaged in poisoning society
in yet a different manner, by the sale of garments made in places in
which there is infectious disease transmissible in articles exposed
to it. In this case, also, as in the case of the dairyman’s milk, the
customer is at the mercy of the community and its officials. For when
he orders a suit, it is out of his power to sit in the tailor’s shop
while the garment is cut, and then follow it whithersoever the merchant
tailor may send it, first to a workshop to be stitched, afterward to a
second place in which the buttonholes may be made, and then to a third
place, commonly a tenement-dwelling, in which the vest and trousers
are felled and otherwise completed before the garment is sent back to
the tailor for the removal of whatever grease and vermin it may have
acquired in its travels. For the tailor, as for the dairyman, there has
never yet been brought to bear any precautionary measure adequately
protective for the customer.
Scarcely more availing than the restrictions upon strychnia and arsenic
in the wilderness of modern retail trade, are the efforts of the public
officials to protect the purchasing public by the dissemination of
information. The Department of Labor at Washington, the state bureaus
of labor, the state inspectors of factories, the municipal and state
boards of health, the state chemists and dairy commissions, all publish
annually or biennially (some of them quarterly, monthly, and weekly)
information for the enlightenment of the citizens. But very little of
this information has, hitherto, served the purpose of the individual
purchaser. If I have read the reports of all these officers, I am not
only in as great danger as before of buying glucose for sugar, acetic
acid for vinegar, and paper in the soles of my shoes; but I am in as
great danger as before of buying smallpox, measles, scarlet fever,
infectious sore eyes and a dozen forms of disease of the skin in my
new garments. For not one of these officials publishes the list of
the kitchen-tailors to whom the merchant tailor gives his goods to be
made up; just as not one of them can possibly give information whereby
adulterations of foods can be successfully detected in the private
kitchen.
On the other hand, the available official information already existing
has hitherto remained largely ineffectual. In vain has the fact
been printed that a certain bouillon (so extensively advertised as
particularly delicate and suitable for the use of aged persons and
little children) is boiled in such close proximity to the fertilizer
storage of the packing establishment that the factory inspectors fall
ill on the days of inspection of these premises. The bouillon continues
to be served at the luncheons of the socially aspiring. Official
statements on all these matters, safely buried in official reports, do
not reach and influence the great mass of the buyers.
For many generations manufacturers have been offering to their patrons
the guarantee of the brand, whereby the producer stakes his reputation
upon the excellence of the article bearing his name or device. But
the public attaches such slight importance to this guarantee that, at
present, many factories send out more goods without the brand than with
it, not wishing to shoulder the discredit incident to their cheapest
and most worthless product, which yet proves the more profitable
portion of the total output.
The difficulties of the manufacturers in their efforts to enlighten
purchasers are greatly intensified by the extraordinary incompetence of
the “average” purchaser to judge articles on their merits. For certain
great modern industries men have devised tests for the product, and
warships, locomotives, railway bridges, and electrical installations
can all be tried and tested before the bills are paid. But for the bulk
of the products intended for personal use, nothing effective has been
designed corresponding to these tests. Especially is this true of all
those branches of manufacture which were once carried on by women in
the home, and have now gone out into shops and factories. Concerning
these products, purchasers must still rely upon their individual skill
as buyers. The old rule _caveat emptor_ is here carried out to its
utmost application.
The most promising step forward in the effort to educate the purchasing
public has been taken whenever a state has required the manufacturer
of an article of food or medicine to state clearly and truthfully the
ingredients composing each package offered for sale. This is a direct
appeal to the intelligence of the purchasing public. Such measures
become effective just in proportion as the purchasers coöperate with
the officials who are charged with the duty of testing and analyzing
samples bought in the ordinary course of trade. A community in which
this coöperation is well sustained protects the life and health
of its citizens, stimulates their intelligence in a direction of
ever-increasing industrial importance, and enforces honesty upon
producers who are under the heaviest moral strain when left unsustained
under the pressure of competition.
The same principle underlies a bill entitled “An Act for Preventing
the Adulteration or Misbranding of Foods or Drugs, and for Regulating
Traffic Therein,” which has twice passed the House of Representatives
only to fail each time of passage by the Senate. This is the attempted
application of the principle that the purchaser is of right entitled to
trustworthy information furnished by the producer and guaranteed by the
ceaseless activity of officials created for the purpose of examining
the products and testing the veracity of the labels attached to them.
By providing for a continuous appeal to the intelligence of the
individual purchaser, and an ever present warning to the producer to
tell the truth as to his product, this bill[13] promises an important
ethical gain through legislation.
FOOTNOTES:
[12] In England, a large body of purchasers has, for more than one
generation, striven to attain an effective knowledge of its sources of
supply, and to organize demand for the express purpose of influencing
the conditions of distribution, namely the coöperative societies. In
America, however, the coöperative movement (aside from insurance and
building and loan societies) has gained no considerable headway in
either production or distribution. The work of the trade unions in the
direction of affording information and arousing an interest in the
conditions of production will be dealt with later.
[13] For the text of this bill see Appendix V.
CHAPTER VII
THE RIGHTS OF PURCHASERS, AND THE COURTS
The more closely the rights of purchasers are scrutinized, the more
clearly it appears that they are social rights. However much they may
present themselves to the mind as individual, personal rights, the
effort to assert them invariably brings the experience that they are
inextricably interwoven with the rights of innumerable other people.
In the last analysis they cannot be asserted without the previous
assertion of the claim of the weakest and most defenseless persons in
the community.
It has been suggested in a previous chapter that the most obvious
rights of the purchaser are, to have his goods as they are represented,
and to have food pure and garments free from poison and infection
when bought of reputable dealers at the price asked; and, finally and
most important, to be free from participating indirectly, through the
purchase of his goods, in the employment of children and of the victims
of the sweating system.
Before, however, these fundamental rights of any purchaser can be
established as a matter of course, it occurs incidentally that the
lives of infants must be safe from the poison of unclean milk and
adulterated foods, and the consciences of the wage-earners cleansed
of the degradation implied in preparing impure foods for the market.
In the process, honesty must be forced upon the poisoners (by means of
adulterations in food and germs in apparel) who now thrive upon the
ignorance and credulity of the buying public.
Before the individual purchaser can vindicate his own personal rights,
the whole body of purchasers are constrained to save childhood for
the children, and home life for the workers who dwell in tenements.
The garret of the humblest widow must be safe from invasion by the
materials and the processes of industry. The childhood of the dullest
orphan must be secure from the burden of toil. On no easier terms can
the conscience of the citizen as purchaser be freed from participation
in the meanest forms of cruelty, the sacrifice of the weak and the
defenseless to the search for cheapness.
These ends can be accomplished, however, only by comprehensive statutes
sustained by decisions of the highest courts, and enforced by endless
effort of the purchasers and the wage-earners defending their interests
together. Under the pressure of competition, the highest ethical level
possible to our social life can be reached only through legislation in
this, its highest and finest sense.
=The New York Decision of 1884; (In re Jacobs).=--These truths find an
illustration in the history of a disastrously unsuccessful effort of
the cigarmakers to protect by statute their own exclusive interests,
through the enactment of a measure prohibiting the manufacture of
cigars and the manipulation of tobacco in tenement houses in the state
of New York. In 1884, when this effort was made, tenement-manufacture
was of relatively slight extent compared with its subsequent
development, and was confined almost exclusively to the materials
mentioned. The sweating system, as we know it, was then in its
earliest infancy, and the manufacture of garments and other articles
under it was so slight as not even to suggest to the cigarmakers the
inclusion of the needle-trade workers in the struggle for the statutory
prohibition of work in the tenements.
When the law prohibiting the manufacture of cigars and the manipulation
of tobacco in the tenements had been in force less than a year it was
pronounced unconstitutional by the Court of Appeals, in the decision of
the case of in re Jacobs.[14]
Had that earliest statute been sustained by the Court of Appeals of
New York it is safe to assert that the odious system of tenement
manufacture would long ago have perished in every trade in every city
in the Republic.
Because it was undeniably class legislation, applying only to those
tenement-dwellers who were employed in producing the commodities
including in some form tobacco as an ingredient, and omitting all
others, it is impossible to defend the statute. But the deplorable
results of the decision of the Court of Appeals, which its defective
form called forth, are of such far-reaching ethical, industrial and
social character as to deserve careful consideration.
The framers of the law described it in its title as “An Act to Improve
the Public Health,” by prohibiting certain narrow lines of manufacture
in the tenements. But the court held that its title did not properly
describe it,--that it was not, in fact, a measure calculated to improve
the public health.
On this last point the court was clearly in error as to the facts. The
proof of the pudding is in the eating; and, since the annulment of the
prohibition, tenement-house manufacture has developed enormously, has
produced disease unceasingly by overcrowding not merely individual
tenements, but whole districts of every city in which it has existed,
and has distributed disease in the communities into which the
manufactured goods have carried germs emanating from infected tenements.
Physicians, nurses, inspectors of numerous kinds, friendly visitors of
divers charities, residents of settlements in districts in which the
sweated industries are carried on, all testify to the impossibility
of preventing the spread of disease in the general public where this
system of manufacture continues. In 1885, however, this was not yet
the case. The germ theory was not yet so thoroughly a part of the
public consciousness as it has since become. Nor was the present
body of evidence as to the close connection of the diseases of the
tenement-dwellers with epidemics in remote parts of the country, whose
inhabitants wear tenement-made garments, then available.
A startling proposition contained in the decision in re Jacobs is that
the health of the employees is not the public health! “What possible
relation can cigarmaking in any building have to the health of the
general public?” asked the Court of Appeals of New York in 1885.
It is not long since a visiting nurse among the tenements of New York
City found a dying consumptive licking the tips of cigarettes which he
was manufacturing. This is but one of thousands of observations which
have been made and recorded since the decision in re Jacobs embodied
that cynical question. During the intervening twenty years the fact
has been imprinted upon the public mind that the whole system of
manufacture in the tenements does involve a degree of danger to the
public health such that it is no longer to be tolerated; that this
danger is not confined to the employees in the tenements themselves,
but that it is shared by them with the whole purchasing public.
It is not now needful to prove that the health of the workers is an
important part of the health of the public. Every epidemic during the
years since 1885 has proved that the disease of the workers in the
tenements becomes, with certainty and precision, the disease of the
public, transmitted in the textures of the goods worked upon in the
sickrooms of the invalids of the tenements.
A comparison of the text of this New York decision of 1885 with the
decisions of the Supreme Court of the United States in the cases of
Holden _vs._ Hardy in 1898, and of Lochner _vs._ New York in 1905,
shows the vast transition which has taken place in the space of twenty
years in the judicial view of the public health.
Says the court in the decision in re Jacobs: “To justify this law, it
would not be sufficient that the use of tobacco may be injurious to
some persons, or that its manipulation may be injurious to those who
are engaged in its preparation and manufacture; but it would have to be
injurious to the public health.”
In the later cases, cited in previous chapters, it has been shown
that the whole contention of the United States Supreme Court is that
the industry must be injurious to the persons engaged in it, in order
that their freedom of contract in relation to it may be restricted by
statute.
Because it was class legislation, by reason of confining its
prohibition to workers in tobacco, and because it was not, in the
opinion of the Court of Appeals, sufficiently obviously a measure for
the improvement of the public health, the court pronounced the law
prohibiting the manufacture of tobacco in tenements unconstitutional
and void, alleging that it deprived the cigarmakers of “some portion of
their personal liberty.”
But, in sustaining his “right to live in his own house, or to work at
any lawful trade therein,”--a right of which the tenement-dwellers
had laboriously striven to be rid, in order to gain instead thereof
the opportunity of working in factories and workshops furnished by
the manufacturer,--the court, in fact, established the “right” of
manufacturers to turn the kitchens and bedrooms of the poorest of the
poor into workrooms and storage places, a “right” of which the most
ample use has for twenty years been made by the manufacturers.
While thus inadvertently defending the undesired “right” of the
tenement-dwellers to suffer the invasion of manufacture into the
innermost recesses of the family life, the court inadvertently deprived
the purchasing public of the power of tracing the processes of
manufacture which are carried on, in name at least, for its sake. It
thus deprived the purchaser, in effect, of the power to exercise the
right to knowledge of his sources of supply.
Moreover, by the decision, the right of the workingman who lives in
a tenement house to enjoy his home, using it for the purposes for
which a home is established and free from the intrusion of his daily
bread-winning employment, was inferentially shown to be, like his
right to leisure, one which must be achieved by the method of trade
organization.
=The Development and Regulation of the Sweating System.=--This
inference the tenement-house workers drew without loss of time. They
abandoned all effort to secure sweeping prohibitions, and have since
that time striven to deal with their problem by the twofold method
of regulation by statute and regulation by public opinion. Sweeping
prohibition being unattainable, the next step was towards partial
prohibition. Work upon certain specified articles in kitchens and
bedrooms was prohibited to all persons not members of the family.
Although a man could not be shielded from the invasion of his dwelling
by the materials of his industry, he could at least be spared the
presence of strange men and women. An immediate consequence of this was
the establishment of workshops in the rear of the tenements, sometimes
with steam power, sometimes with foot power; but always with the custom
of sending the handwork into the dwellings. The list of articles thus
kept sacred to the family, short at first, grew from year to year, and
now includes thirty-four items. Baking bread and cakes, cracking nuts
for candy manufacturers, candying fruit for sale to school children,
stringing beads for passementeries, pickling cucumbers, and drying
maccaroni are a few of the items not yet embraced in the list.
By adopting these partial prohibitions, while denying to the purchasers
and the workers the protection of a complete prohibition of all
manufacture in the tenements, the state has instilled into the minds
of its industrially weaker citizens a sense of confusion mixed with
contempt for the law. For, where a sweeping prohibition would have been
logical and relatively easy to enforce, the petty, teasing restrictions
enacted piecemeal have been fruitful of the spirit of evasion. When it
was a misdemeanor for a man’s sister to sew a cloak in his dwelling,
but perfectly legal for his wife to sew it, while his sister could
legally sew an apron or a skirt for the same employer, the one
impression conveyed to the mind of the newly arrived immigrant was that
this law was not intended to be obeyed. And it never has been obeyed;
nor is there any prospect, even in its present amended form, that it
will be uniformly obeyed. For it is clearly non-enforceable.
In the vain effort to enforce partial restrictions which are in the
nature of the case non-enforceable, a provision was enacted in 1899
requiring a license from the factory inspector for every person or
group of persons who worked at any process of manufacture of some
thirty articles, in any tenement house or in a building in the rear of
one. After this provision had been in force for five years the writer
one day, in 1904, observed a woman walking along Mulberry street, New
York, carrying a huge bundle of knee pants on her head. The burden
bearer mounted to the fifth floor of an Italian tenement and threw her
bundle down upon a singularly greasy kitchen table. Asked to show her
license to work, she brought out, with the friendly smile and courteous
manner of the Sicilian peasant woman, a letter from the New York State
Department of Labor, dated some seven weeks before, notifying her that
her premises were unfit for licensing, and that no more work must be
done in them until they had been thoroughly cleansed, re-inspected and
licensed! The cheerful needle-woman, unable to read in any language,
but reassured by the seal of the state of New York on the envelope, had
assumed that this was the license for which she had been told to apply,
and had worked away happy in the consciousness of having obeyed the law.
The only gain to any part of the community derived from the licensing
law during the five years in which it retained its original form,
was the discovery of the places in which manufacture was carried
on. More than thirty thousand licenses were issued, and the ugly
fact was brought to light that there were more licensed groups of
tenement-workers in the four most undesirable streets of New York City,
Mott, Mulberry, Elizabeth and Chrystie streets, than in any other
streets.
Since the promulgation of the decision in re Jacobs, in 1885, the state
and the trade unions have alike been burdened with the despairing
duty of performing the impossible. It is utterly impossible to keep
the system of manufacture in the tenements, and to avoid its evil
consequences.
Tenement work means the underpaid husband letting his wife earn the
rent with her needle, instead of insisting, as it is clearly his
duty to do, upon wages enough to maintain his family. It means boys
and girls of ten years kept at home from school, in violation of the
compulsory education law, to do the housework and take care of the
younger children while the mother sews for the market.
Tenement work means the use of foot power in competition with steam
power, a ruinous strain upon the health of every man, woman and child
subjected to it. Tenement work means an endless working day in the
tenement at the foot power machine in the “rush” season, followed by
the shutting down of the factory for want of orders.
Tenement work means steady downward pressure upon the wages of the
factory workers, to whom it can always be said: “If you do not like our
terms in the factory, we can send the work into the homes.” Tenement
work means the unavoidable spreading of disease and the frequent
breaking out of epidemics, not only in the cities where it is carried
on, but in all those distant places to which the product may be sent.
In the effort to minimize the inevitable consequences of homework,
the state has subjected the dwellers in the tenements to threefold
inspection, in addition to the oversight of the federal government,
whose tax collectors were already charged with the duty of following
them up for the purpose of gathering the tax upon tobacco.
Because the personal liberty of a workingman would be interfered with,
if his employer were prohibited from requiring him to work at home, the
unhappy dwellers in the tenements have seen their homes invaded by all
manner of materials, from tobacco leaves and stems, to the bales of
paper and tubs of paste required for making paper bags, and by three
sets of inspectors,--of the Board of Health, of the Tenement House
Department, and of the Bureau of Factory Inspection.
Moreover, in the alleged interest of their “personal liberty” these
victims of the sweating manufacturers have been constrained to live
within walking distance of their employer’s place of business, for
the burden-bearer between the merchant tailor and his home-worker is
usually a woman or a child, reduced by the smallness of the pay to
saving car-fare by living near the “shop.” Instead of able-bodied men
and girls of the family, walking empty handed to and from their work,
or riding perhaps to a desirable suburb by trolley, the burden-bearing
woman or child has determined the distance to be traversed. Thus
the tenement house problem has been artificially intensified and
complicated; and by reason of the unlimited competition of the women of
the tenements, wages have been kept at such a level that neither time
nor car-fare can be spared by an adult for fetching and carrying. Hence
some child is sacrificed by being kept from school to serve as beast of
burden, whenever the goods are such as can safely be trusted to a child.
Moreover, all this sacrifice of the family leaves the task of the
officials a hopeless one. No Board of Health has ever succeeded in
knowing, every day in the year, where all the goods are concealed in
the tenements, nor where all the children are who may be coming down
with diphtheria, or shedding rags and patches of their skin after light
cases of scarlet fever.
=Trade Unions and the Union Label.=--The decision of the Court of
Appeals in re Jacobs virtually turned over to the wage-earners the task
of providing, through the machinery of their organizations, for the
protection of themselves and the purchasers against the evils of the
sweating system. For twenty years the unions have faithfully striven
to perform a task which it was, from the beginning, impossible that
they should achieve. Just as they long before introduced child-labor
legislation and factory inspection, which have come to be recognized as
benefactions to the whole people; so they now invented that method of
dealing with the sweated trades, by offering the label as a guaranty
of conditions approved by the workers which is accepted as the best
available under the circumstances, and in view of the conditions
imposed by the decision of the Court of Appeals in re Jacobs. It is,
of course, out of their power ever to do, with palliatives, what a
sweeping prohibition could have done long since.
The public, however, cannot afford to allow the courts to relegate
to the labor organizations the duty of protecting the public health
against the reckless willingness of manufacturers to take risks. For,
if the union is not strong enough to dominate the trade (and no union
of garment workers has ever been strong enough to do this), the public
must take the consequences in disease and death sent out from the
tenement sewing rooms. Or, if a union were not only insufficiently
strong but imperfectly honest as well, the public would pay the penalty
for every label dishonestly sold to contractors for use in places which
fell below the accepted standard of wholesome and clean conditions.
Or, let us suppose that a portion of the public may be honestly opposed
on principle to the maintenance of trade unions; and unwilling,
therefore, to purchase goods guaranteed by the union label. Such
abstainers, if left without other means of discrimination in favor
of goods made under wholesome conditions, are in danger, not only of
incurring disease and death, but of disseminating them throughout the
community.
Finally, a large part of the membership of the unions in the garment
trades consists of immigrants so recently arrived from Eastern Europe
as to have no adequate standards of wholesome conditions for home and
workshop, of persons wholly unprepared to defend their own health, much
more that of the general public. Clearly the unions, however valuable
to their members and to the community in other relations, cannot, in
the nature of things, be a sufficient guardian of the health and safety
of all the purchasing public.
While, however, the unions have not achieved the impossible, and have
not succeeded in performing a task of protection of the public health
which should never have been asked of any voluntary organization,
they have been vastly strengthened by the effort to do this. Baffled
in the endeavor to do away with tenement work by law, they turned
to the development of their label, advertising it, obtaining legal
guarantees against infringement, and publishing all the abhorrent facts
connected with the sweating system and attached, inferentially, to the
goods which bore no label. Their label, whether or not it has always
guaranteed satisfactory cleanliness and the absence of disease from the
workroom, has announced to the world that the conditions as to hours
and wages (the organization of employees being understood, of course),
in the factories in which it was used, were satisfactory to the workers
in those factories. This recommendation has gradually come to possess a
value such that in some industries the manufacturers pay for the label
a price which covers the cost of advertising on a large scale.
Since goods bearing the trade union label commonly cost somewhat more
than other goods, the workingmen who take the trouble to pay the price
required are stimulated to look sharply after the integrity of the
union which offers a label.
What, now, is the position of that portion of the public which
disapproves of the union and repudiates its guarantee and its label?
Except within the narrow limits of the Consumers’ League, with its
label on women’s and children’s white stitched underwear, such
purchasers have no guarantee whatever. Moreover, only a small fraction
of the innumerable industries involved in the preparation of apparel is
included among the organizations of labor. While labels may be found
in many cities by seekers after men’s hats and shoes, outer-wear,
neckties, gloves, shirts, etc., none is discernible for woven
underwear, on which much handwork is regularly done in homes; while for
women the union label is scarcely upon the market outside of the shoe
trade.
In the manufacture of garments and apparel of all kinds for women, the
workers are chiefly young girls and women who have, hitherto, formed
no stable union; who have no funds for advertising on a large scale,
and no real power of enforcing any provisions for their own protection
or that of the public, which has for twenty years left to them this
impossible task.
A community which turns over to the working-women the task of
assuring to it clean and wholesome workrooms in the tenements, for the
production of its wearing apparel, gets exactly what it deserves,--the
sweating system upon the largest scale that the world has ever seen.
After the state of New York shall have arrived at some method of
doing away with tenement manufacture and sweating, after these twin
iniquities shall have been effectually abolished, the trade unions will
resume their normal function of guaranteeing to purchasers who ask for
it, the fact that the hours of labor and the wages are satisfactory
to the workers in the factory from which the label issues. It is
preposterous ever to have asked of them, even inferentially, more
than this. They have had imposed upon them by the indirect working of
the decision of the Court of Appeals in re Jacobs, a task which it
was clearly the duty of the state to perform; and it is in no wise
to their discredit that they have failed to do the impossible. That
discredit attaches to the community which imposed this unwarranted and
unwarrantable burden.
Thus we have, after twenty years of effort, two ineffectual methods of
dealing with tenement manufacture, pursued side by side. The state,
by statute, legalizes the manufacture in the tenements of thirty-four
articles, and proceeds by a cumbersome threefold inspection (by the
State Factory Inspectors, the Board of Health Inspectors and the
Tenement House Department), to minimize the danger to the public
health, including that of the workers themselves. But, as has been
pointed out, the public health is not really safeguarded. The people
are merely lulled into a false sense of security.
The unions, meanwhile, have spent untold thousands of dollars in their
effort to induce the purchasing public to avoid the dangers attending
sweated goods, by the individual method of discrimination against
tenement made products and in favor of goods guaranteed by the union
label.
=Ethical Loss Through Lack of Legislation.=--The ethical loss by reason
of this decision of the Court of Appeals of New York, quite apart from
the loss of money in advertising by the unions and in futile, hopeless
inspection on the part of the state, is quite beyond the possibility of
calculation.
From the day when this decision became effective, the interests of the
purchasing public and of the tenement dwellers have been practically
identical, and both have been sacrificed to the convenience and the
profit of the manufacturers.
For twenty years the state of New York has proclaimed through its
highest court that it cannot protect the homes of its industrially
weakest citizens from invasion by the materials of their industry.
These materials are owned by rich and powerful employers, strongly
organized locally and nationally, and are foisted upon the meager
dwellings of the poor solely for the purpose of saving to the employers
the cost of heat, light, cleaning and, far more important, rent of
workrooms. For the convenience of the powerful, the weakest industrial
factors in the community, the widows burdened with young children, the
daughters kept at home by bedridden parents, have been invaded by
industry and by inspectors. This forcing of industry into the tenements
has fostered the belief that work _must_ be done by all who live there,
particularly if they are poor and sick. Thus devotion to the needle and
the pastepot has become a sort of touchstone measuring the “worthiness”
or the “helpableness” of the women who have dependent members of the
family.
Meanwhile, the manufacturer or the merchant tailor, the owner of the
goods, bears no responsibility towards the community, beyond the
requirements that he must file with the factory inspectors, when so
requested, a correct list, in the English language, of the addresses
to which he sends his goods to be made up, and must, before sending
goods into a tenement, inquire of the Board of Health whether there is
recorded any present case of infectious or communicable disease on the
premises.
Before the case in re Jacobs can be reversed, and work in the tenements
sweepingly prohibited in the interest of the public health, including
the health of the workers, it may be necessary to provide--by way
of one more last palliative experiment--for placing the goods-owner
under a heavy bond for the literal fulfilment of the requirements
of the legal restrictions by all the people to whom his goods are
entrusted. This would be less than the manufacturer’s equitable share
of the burden which he inflicts upon society. Since it is for his own
convenience and enrichment that the evil of the sweating system is
fastened upon society, he should bear the whole burden of the cost of
inspection, disinfection of premises and of goods which have been
exposed to infection, prosecution of offenders, etc.
The arguments against prohibition of work in the tenements are to
be found in the decision in re Jacobs, printed in the appendix. The
arguments for prohibiting outright all such work are twofold, those
which affect the purchasing public in its health and conscience; and
those which affect the workers in the tenements, in their health, their
home life, their relation to their industry, and to the life of the
community of which they form a part.
The fact that the cigar workers obtained the passage of the law
prohibiting the manufacture of cigars and tobacco in the tenements,
sufficiently indicates their position on the subject. All the
restrictions which have been placed upon tenement-house manufacture
during the twenty years since complete prohibition thereof was blocked,
have been obtained either by the tenement-house workers, or with their
eager help.
It may be urged, however, that they are not judges of what is best
for themselves; that their arguments are not sound. It is, therefore,
worth while to consider who the tenement-house workers are. They are,
first, the able-bodied men whose fathers and sons working in other
trades all have workrooms provided for them by their employers, such,
for instance, as employees in the printing and binding trades, in
wood-working, upholstery, boot and shoe making, and all the other
industries in which the use of steam or electricity, or the nature of
the goods, make it advantageous to the employer to have the work done
in a factory or a workshop. What possible advantage is gained for these
men by working in their kitchens and bedrooms, in the midst of the
cooking, washing, scrubbing, and care of the babies? Obviously none!
The second contingent of home-workers are the able-bodied immigrant
girls. These suffer the disadvantages of losing contact with the
English speaking employers and fellow workers in the factory or
workshop. They use foot power instead of steam or electricity, and thus
earn less money with more exertion. They spend the day in the same
air in which they had spent the night, losing the change and exercise
which would attend travel to and from the factory. They lose the
_esprit de corps_ which arises from work in a group, and their wages
are correspondingly wretched. There is no standard of wages and hours;
they take what the employer gives them; and they work until the task is
accomplished. For them there is no opening hour, no closing time. When
work is done, they cease to drive the machine, not until then.
The children whose school life is sacrificed to the need of being
on hand to fetch and carry are losers, pure and simple. So are the
wretched little boys and girls who are still too young to fetch and
carry, but can be employed in stringing beads and pulling basting
threads, in pasting boxes and bags, in wrapping paper around strips of
wire to make stems for artificial flowers, in digging the kernels out
of nuts, or in cracking the nuts themselves.
Finally, there are the widows with young children, the daughters with
bedridden old fathers or mothers,--the women who cannot leave home to
work. For these persons, work in the home is an evil and an evil only.
Not one of them can really support herself while doing the housework
and caring for her dependents, and the community which requires that a
woman so placed shall go through the forms of work for self-support,
deserves all the punishment that it receives in the form of transmitted
disease. All such women are already in the receipt of charitable aid,
and the humane and enlightened thing for the community to do in their
case is to make that aid adequate to their needs, absolving them from
working for the market, on condition that they take suitable care
of the invalids or the children who are dependent upon them. In the
long run, the community pays many times over in the form of disease
transmitted from the sickrooms, and of reformatory life provided for
the children neglected by their overworked mothers in the effort to do
the impossible, for every economy which it attempts to make by means of
relief withheld from such dependent families.
The men in the trades afflicted with tenement work have always
maintained that, if they could be freed from their slavery to their
kitchens and bedrooms, and enabled to work in suitable workshops,
they could then organize their trade in such ways as to command
wages sufficient to support their families, including their sick and
dependent relatives. It is only necessary to know somewhat intimately
two brothers, one a tailor working at home and the other a printer
working in a shop, to be persuaded of the truth of this contention. For
the skill required in the two trades is of about the same grade, the
difference being confined to the organization of the industry itself.
There is a wide-spread belief that the prevailing cheapness of
ready-made clothing is due to the utilization of the ill-paid labor
of women and children in the tenement homes; that the wage-earner in
the non-sweated trades profits by the sufferings of the sweaters’
victims, and wears better garments by reason of their poverty and the
degradation of this great trade. This is, however, the exact reverse of
the truth. The cheapness of our garments is attained in spite of the
sweating system, not because of it. Indeed, it is doubtful whether the
fall in prices of garments is commensurate with the fall in the prices
of the cloth of which they are made. Certain it is that cloth is vastly
cheaper than it was thirty years ago. The methods of placing goods
of all kinds upon the market (garments and cloth for making garments
included) have been revolutionized in the direction of cheapness within
the memory of all of us. That part of the work of making garments
which lies outside of tenements has also been cheapened by the general
application of steam machinery to garment-cutting. These three great
modern improvements have enabled the corporations which control the
garment trade to prolong the life of the foot-power sewing machine and
the tenement-house workroom.
The purchasing public, made gullible, perhaps, by its own greed
for bargains, has willingly believed that in this one set of trades
alone primitive machines and petty shops maintaining a multitude of
middlemen were really cheaper in the end (because they employ the worst
paid women and girls to be found in the field of manufacture) than
well-equipped plants, with power furnished by steam or electricity and
conducted by managers of higher intelligence.
It has become an axiom in political economy that high-priced labor
stimulates the application of machinery. On the other hand, the
presence in the tenements of girls who sew on buttons and run errands
for wages ranging from thirty cents to seventy cents a week, and of
women who sew at foot-power machines for $3.00 to $5.00 a week from
ten to twenty hours a day during the five to seven months which form
the busy season, and receive relief from public and private charities
during the remainder of the year, distinctly tends to prolong the
present primitive and belated equipment of this part of the garment
trades. It is, perhaps, not too much to say that the thousands of women
and girls in the tenements present a serious obstacle to the process of
lifting the garment trades from their present degradation to the level
of the factory trades.
Under the sweating system, the wholesaler or the merchant tailor
shifts the burden of rent from himself to the tailor who sews in a
tenement-house kitchen or bedroom. The wholesaler or the merchant
tailor farther avoids the risk attendant upon maintaining a plant
equipped with steam or electricity throughout the dull season. He
offsets, as far as he can, the added expense of a horde of middlemen,
by subdividing the work of the women and girls in the tenements and
simplifying it to the utmost extreme, so that skill in the worker is
reduced to the last degree, and wages follow skill in the direction
of zero. Hence we find in the tenements “hand girls” whose backs grow
crooked over the simplest of hemming, felling, and sewing on buttons,
and “machine girls” whose exertion of foot power entails tuberculosis
and pelvic disorders ruinous to themselves at present and to their
children in the future. The foul, ill-ventilated, often damp shops,
the excessive speed and intensity of the work, the ceaseless exertion
of the limbs throughout interminable days, and the grinding poverty
of these workers combine to render consumption the characteristic
disease of these trades. The very youth of the workers increases their
susceptibility to injury and disease. Young backs grow crooked over
the machines, young eyes and membranes are irritated by the fluff and
dust disengaged from cheaply dyed woolen goods by flying needles.
The eagerness of young workers is stimulated to the highest pitch by
ill-paid piece-work and the uncertainty of its continuance.
All this wretchedness, attending this belated survival of primitive
organization in a great industry, surely cannot permanently survive in
the face of the advantages which mechanical power possesses over foot
power. It is only a question of time when the garment trades shall be
placed upon the factory level.
This change, however, cannot reasonably be expected of the corporations
which control the garment trades, or of the growing intelligence
of the sweaters’ victims. It will be brought about, if at all, by
an enlightened public refusing to wear tenement-made garments, and
embodying its will in prohibitory legislation carried much farther than
the tentative measures of regulation now in force.
A necessary preliminary to this revolt against tenement goods is
a clear perception of the truth that no one (except possibly the
wholesaler) profits by the pauperism and suffering of the men, women
and children who work in tenement rooms.
To the decision of the Court of Appeals of New York in the case in
re Jacobs, is directly due the continuance and growth of tenement
manufacture and of the sweating system in the United States, and its
present prevalence in New York.
Among the consequences and the accompaniments of the system are
congestion of the population in the tenement districts; the ruin of
home life in the dwellings used as workrooms; child labor in the homes;
endemic disease (especially tuberculosis) due to the overcrowding and
poverty of skilled workers; chronic pauperism of thousands of skilled
working people during a part of the year in a series of important
trades; insanity due to overwork followed by the anxiety of a prolonged
period of unemployment; and suicide, the self-inflicted death of a
garment-worker being of almost daily occurrence in New York and Chicago.
The extent of these evils cannot, of course, be itemized in detail.
They are so great at the present time that unremitting effort is needed
to abolish the system of which they are the consequences and the
accompaniments.
For this purpose it is necessary to enact a statute so drawn as to
meet the opinion of the Court of Appeals that a measure prohibiting
only tobacco manufacture in the tenements was insufficient. The new
prohibition must include all manufacture in tenements.
The principle that the health of the employees is not a part of
the public health and, therefore, not a reason for prohibiting a
given _mode_ of manufacture is no longer tenable in the presence
of the decisions of the Supreme Court of the United States in the
cases of Holden _vs._ Hardy and Lochner _vs._ New York. To assure
the abandonment of this obsolete position, however, public opinion,
including the courts, must be effectively enlightened upon every aspect
of tenement-house manufacture.
In the case in re Jacobs, the Court of Appeals of New York fell into
the same error which has been elsewhere pointed out in the Illinois
case, Ritchie _vs._ the People. The court has no apparatus for
investigating the conditions of industry. But the legislature, through
its investigating committees, possesses all the needful apparatus for
investigation. When the court sets up its non-acquaintance with the
existing conditions as a reason for over-riding the action of the
legislature, the purchasing public is left with no redress and no clear
line of action marked out for the future.
How can the courts be enlightened and instructed concerning conditions
as they exist? This is the burning question which confronts both the
purchasers and the wage-earners in all those cases in which the health
of the whole community is affected in ways less conspicuous than
epidemic smallpox. How can the gradual, cumulative effect of working
conditions, and of living conditions, upon the public health, be made
obvious to the minds of the judges composing the courts of last resort?
The decisions in the cases in re Jacobs, Ritchie _vs._ the People,
and Lochner _vs._ New York indicate that a satisfactory reply to this
question is a prerequisite to farther ethical gains in wide industrial
fields by means of legislation.
FOOTNOTES:
[14] See Appendix IV.
APPENDIX I
CANTON COTTON MILLS _vs._ EDWARDS
(Supreme Court of Georgia. June 10, 1904.)
INFANTS--CAPACITY--INJURY TO EMPLOYEE--PETITION
Wylie Edwards, by his next friend, brought suit against the Canton
Cotton Mills for personal injuries, alleging that on February 10, 1902,
the plaintiff, being a child ten years old, was employed to sweep
floors and make bands for the spinning-room. That, in order to get
water to drink, it was necessary for him to pass the entire length of
defendant’s factory, filled with swiftly moving machinery, and that
after obtaining a drink of water, and while returning, it was necessary
to pass a machine called a “finisher.” That he stopped to observe the
lap of cotton as it came out of the machine onto the roll. Boylike, and
with no knowledge of the danger, he laid his hand on the roll, as he
had seen the man in charge of the machine do, when, in some way unknown
to the plaintiff, his hand was caught and drawn between the rolls,
to his great damage. That plaintiff was not aware of the dangerous
character of the machine, nor had he been warned of its danger. That
he was so young as not to be aware of the dangerous character of
defendant’s machinery; nor was he capable of appreciating and guarding
against such dangers; nor was he capable of understanding, remembering
and acting upon warnings that might have been given by defendant; and
of all this defendant had full knowledge. That defendant was negligent,
in that it retained in its employment, and required to be in its mills
among its machinery, a child too young to realize and guard against
a danger, and too young to appreciate and act upon any warning, and
too young to work in such a place. That it was negligent in failing
to warn him, and in failing so to guard its machinery as to make the
factory safe for him to work in. That the defendant was negligent in
not protecting him from dangers incident to work about a machine of
whose dangers he knew nothing, and which, by reason of his youth and
inexperience, he was incapable of guarding against.
The defendant demurred on the grounds that the petition set out no
cause of action; that the injury was the direct result of plaintiff’s
own negligence; that it was not negligence in defendant not to warn
plaintiff, nor was it negligence to employ a child of the age of
plaintiff, nor was it bound to inform him as to the dangerous machines
in and about the mills on which plaintiff was not expected to work.
The court overruled the demurrer, and the company excepted.
LAMAR, J. The age of majority and the age under which there can be no
criminal responsibility have been arbitrarily declared by statute. But
neither nature nor the courts have fixed any definite age at which
children attain the capacity to work. In some children the mind
outruns the body, and in others the body outgrows the mind. Some are
weak and undeveloped at the age of fourteen, and others are strong
and vigorous at ten. Some at an early age can hunt, drive, ride,
swim and work in many occupations with ordinary safety, while others
of the same age, with even greater physical strength, by reason of
want of experience, would be unable to engage in the same sports or
labors without serious risk. The question of capacity, therefore,
is not to be determined as a matter of law by the courts, but as a
matter of fact by the jury; applying the principle involved in Civ.
Code 1895, § 2901, which declares that “due care in a child of tender
years is such care as its capacity, mental and physical, fits it for
exercising in the actual circumstances of the occasion and situation
under investigation.” The petition alleged that the plaintiff was
ten years old, ignorant of the character of the machine and of the
danger of working therewith as he had seen others do; that he had not
been warned; that he was incapable of appreciating, remembering or
acting upon any warnings that might have been given him; and that the
company was not only negligent in failing to warn plaintiff, but also
in failing to guard its machinery so as to make the factory safe as a
place in which to work. These allegations made it proper to overrule
the demurrer. Compare Evans _vs._ Josephine Mills, 119 Ga. 448, 46 S.
E. 674.
Judgment affirmed. All the justices concurring.
APPENDIX II
RITCHIE _vs._ THE PEOPLE
(Supreme Court of Illinois. March 14, 1895.)
CONSTITUTIONAL LAW--SUBJECT EXPRESSED IN TITLE--DUE PROCESS OF
LAW--EIGHT-HOUR FACTORY ACT--APPROPRIATIONS
Act June 17, 1893, § 5, which declares that “no female shall be
employed in any factory or workshop more than eight hours in any one
day or 48 hours in any one week,” is unconstitutional, as depriving
persons of property and liberty without due process of law.
Error to criminal court, Cook county; Nathaniel C. Sears, Judge.
Prosecution of William E. Ritchie for violation of the eight-hour law.
Defendant was convicted, and he brings error. Reversed.
MAGRUDER, J. Upon complaint of the factory inspector appointed under
the law hereinafter named, a warrant was issued by a justice of
the peace of Cook county against plaintiff in error, and upon his
appearance, and waiver in writing of jury trial, a trial was had,
resulting in a finding of guilty, and the imposition of a fine of five
dollars and costs. The complaint charged that on a certain day in
February, 1894, plaintiff in error employed a certain adult female of
the age of more than 18 years at work in a factory for more than eight
hours during said day. The plaintiff in error took an appeal to the
criminal court of Cook county, and waived a jury, and upon trial in
that court before the judge without a jury he was convicted and fined.
The case is brought to this court by writ of error for the purpose of
reviewing such judgment of the criminal court.
Upon the trial of the cause the defendant below submitted written
propositions to be held as law in the decision of the case. By these
propositions the trial court was asked to hold that the act of the
legislature of Illinois entitled “An act to regulate the manufacture
of clothing, wearing apparel, and other articles in this state, and to
provide for the appointment of state inspectors to enforce the same,
and to make an appropriation therefor,” approved June 17, 1893 (Laws
Ill. 1893, p. 99), and each and every section thereof, is illegal
and void, and contrary to and in violation of the Constitutions of
Illinois and of the United States. The court refused all of the
propositions so submitted, and exception was taken by the defendant.
The present prosecution, as is conceded by counsel for both sides, is
for an alleged violation of section 5 of said act. That section is as
follows: “No female shall be employed in any factory or workshop more
than eight hours in any one day or forty-eight hours in any one week.”
“Factory” or “workshop” is defined in section 7 of the act as follows:
“The words ‘manufacturing establishment,’ ‘factory’ or ‘workshop,’
wherever used in this act, shall be construed to mean any place where
goods or products are manufactured or repaired, cleaned or sorted, in
whole or in part, for sale or for wages.” Punishment for violation of
the provisions of the act is provided for by section 8 thereof in the
following words: “Any person, firm or corporation, who fails to comply
with any provision of this act shall be deemed guilty of a misdemeanor,
and on conviction thereof shall be fined not less than three dollars,
nor more than one hundred dollars for each offense.”
The main objection urged against the act, and that to which the
discussion of counsel on both sides is chiefly directed, relates to
the validity of section 5. It is contended by counsel for plaintiff in
error that that section is unconstitutional as imposing unwarranted
restrictions upon the right to contract. On the other hand, it is
claimed by counsel for the people that the section is a sanitary
provision, and justifiable as an exercise of the police power of the
state. Does the provision in question restrict the right to contract?
The words, “no female shall be employed,” import action on the part of
two persons. There must be a person who does the act of employing and
a person who consents to the act of being employed. Webster defines
“employment” as not only “the act of employing,” but also “the state of
being employed.” The prohibition of the statute is therefore twofold:
First, that no manufacturer or proprietor of a factory or workshop
shall employ any female therein more than eight hours in one day;
and, second, that no female shall consent to be so employed. It thus
prohibits employer and employee from uniting their minds or agreeing
upon any longer service during one day than eight hours. In other
words, they are prohibited, the one from contracting to employ, and the
other from contracting to be employed, otherwise than as directed. “To
be ‘employed’ in anything means not only the act of doing it, but also
to be engaged to do it; to be under contract or orders to do it.” Hence
a direction that a person shall not be employed more than a specified
number of hours in one day is at the same time a direction that such
person shall not be under contract to work for more than a specified
number of hours in one day. It follows that section 5 does limit and
restrict the right of the manufacturer and his employee to contract
with each other in reference to the hours of labor.
Is the restriction thus imposed an infringement upon the constitutional
rights of the manufacturer and the employee? Section 2 of article 2 of
the constitution of Illinois provides that “no person shall be deprived
of life, liberty or property, without due process of law.” A number
of cases have arisen within recent years in which the courts have had
occasion to consider this provision, or one similar to it, and its
meaning has been quite clearly defined. The privilege of contracting
is both a liberty and property right. Liberty includes the right
to acquire property, and that means and includes the right to make
and enforce contracts. The right to use, buy, and sell property and
contract in respect thereto is protected by the constitution. Labor is
property, and the laborer has the same right to sell his labor, and to
contract with reference thereto, as has any other property owner. In
this country the legislature has no power to prevent persons who are
_sui juris_ from making their own contracts, nor can it interfere with
the freedom of contract between the workman and the employer. The right
to labor or employ labor, and make contracts in respect thereto upon
such terms as may be agreed upon between the parties, is included in
the constitutional guaranty above quoted. The protection of property is
one of the objects for which free governments are instituted among men.
Const. Ill. Art. 2, § 1. The right to acquire, possess, and protect
property includes the right to make reasonable contracts; and when an
owner is deprived of one of the attributes of property, like the right
to make contracts, he is deprived of his property, within the meaning
of the Constitution. The fundamental rights of Englishmen, brought
to this country by its original settlers, and wrested, from time to
time, in the progress of history, from the sovereigns of the English
nation, have been reduced by Blackstone to three principal or primary
articles, “the right of personal security, the right of personal
liberty, and the right of private property.” The right to contract is
the only way by which a person can rightfully acquire property by his
own labor. “Of all the rights of persons it is the most essential to
human happiness.” This right to contract, which is thus included in
the fundamental rights of liberty and property, cannot be taken away
“without due process of law.” The words “due process of law” have been
held to be synonymous with the words “law of the land.” Blackstone
says: “The third absolute right, inherent in every Englishman, is
that of property, which consists in the free use, enjoyment and
disposal of all his acquisitions, without any control or diminution,
save only by the laws of the land.” The “law of the land” is “general
public law, binding upon all the members of the community, under all
circumstances, and not partial or private laws, affecting the rights
of private individuals, or classes of individuals.” The “law of the
land” is the opposite of “arbitrary, unequal, and partial legislation.”
State _vs._ Loomis, _supra_. The legislature has no right to deprive
one class of persons of privileges allowed to other persons under like
conditions. The man who is forbidden to acquire and enjoy property in
the same manner in which the rest of the community is permitted to
acquire and enjoy it is deprived of liberty in particulars of primary
importance to his pursuit of happiness. If one man is denied the right
to contract as he has hitherto done under the law, and as others are
still allowed to do by the law, he is deprived of both liberty and
property to the extent to which he is thus deprived of the right. In
line with these principles, it has been held that it is not competent,
under the Constitution, for the legislature to single out owners and
employers of a particular class, and provide that they shall bear
burdens not imposed on other owners of property or employers of labor,
and prohibit them from making contracts which other owners or employers
are permitted to make.
We are not unmindful that the right to contract may be subject to
limitations growing out of the duties which the individual owes to
society, to the public, or the government. These limitations are
sometimes imposed by the obligation to so use one’s own as not to
injure another, by the character of property as affected with a public
interest or devoted to a public use, by the demands of public policy
or the necessity of protecting the public from fraud or injury, by
the want of capacity, by the needs of the necessitous borrower as
against the demands of the extortionate lender. But the power of the
legislature to thus limit the right to contract must rest upon some
reasonable basis, and cannot be arbitrarily exercised. It has been
said that such power is based in every case on some condition, and not
on the absolute right to control. Where legislative enactments, which
operate upon classes of individuals only, have been held to be valid,
it has been where the classification was reasonable and not arbitrary.
Applying these principles to the consideration of section 5, we are
led irresistibly to the conclusion that it is an unconstitutional and
void enactment. While some of the language of the act is broad enough
to embrace within its terms the manufacture of all kinds of goods or
products, other provisions are limited to the manufacture of “coats,
vests, trousers, knee pants, overalls, cloaks, shirts, ladies’ waists,
purses, feathers, artificial flowers, or cigars, or any wearing apparel
of any kind whatsoever.” The act is entitled “An act to regulate the
manufacture of clothing, wearing apparel and other articles,” etc.
Under the rule of construction heretofore laid down by this court
that general and specific words, which are capable of an analogous
meaning, being associated together, take color from each other, so
that the general words are restricted to a sense analogous to the less
general, it would seem that the general words, “and other articles,”
would be restricted to a meaning analogous to the meaning of the
words “clothing, wearing apparel,” and consequently that they would
only embrace articles of the same kind as those expressly enumerated.
But whether this is so, or not, we are inclined to regard the act
as one which is partial and discriminating in its character. If it
be construed as applying only to manufacturers of clothing, wearing
apparel, and articles of a similar nature, we can see no reasonable
ground for prohibiting such manufacturers and their employees from
contracting for more than eight hours of work in one day, while other
manufacturers and their employees are not forbidden to so contract.
If the act be construed as applying to manufacturers of all kinds
of products, there is no good reason why the prohibition should be
directed against manufacturers and their employees, and not against
merchants, or builders, or contractors, or carriers, or farmers, or
persons engaged in other branches of industry, and their employees
therein. Women employed by manufacturers are forbidden by section 5
to make contracts to labor longer than eight hours in a day, while
women employed as saleswomen in stores, or as domestic servants, or
as bookkeepers, or stenographers, or typewriters, or in laundries, or
other occupations not embraced under the head of manufacturing, are
at liberty to contract for as many hours of labor in a day as they
choose. The manner in which the section thus discriminates against one
class of employers and employees and in favor of all others places it
in opposition to the constitutional guaranties hereinbefore discussed,
and so renders it invalid.
But, aside from its partial and discriminating character, this
enactment is a purely arbitrary restriction upon the fundamental
rights of the citizen to control his or her own time and faculties.
It substitutes the judgment of the legislature for the judgment of
the employer and employee in a matter about which they are competent
to agree with each other. It assumes to dictate to what extent the
capacity to labor may be exercised by the employee, and takes away
the right of private judgment as to the amount and duration of the
labor to be put forth in a specified period. Where the legislature
thus undertakes to impose an unreasonable and unnecessary burden upon
any one citizen or class of citizens it transcends the authority
intrusted to it by the constitution, even though it imposes the same
burden upon all other citizens or classes of citizens. General laws
may be as tyrannical as partial laws. A distinguished writer upon
constitutional limitations has said that general rules may sometimes be
as obnoxious as special, if they operate to deprive individual citizens
of vested rights, and that while every man has a right to require that
his own controversies shall be judged by the same rules which are
applied in the controversies of his neighbors, the whole community is
also entitled, at all times, to demand the protection of the ancient
principles which shield private rights against arbitrary interference,
even though such interference may be under a rule impartial in its
operation. Section I of article 2 of the Constitution of Illinois
provides as follows: “All men are by nature free and independent, and
have certain inherent and inalienable rights; among these are life,
liberty and the pursuit of happiness. To secure these rights and the
protection of property governments are instituted among men, deriving
their just powers from the consent of the governed.” Liberty, as has
already been stated, includes the right to make contracts, as well
with reference to the amount and duration of labor to be performed as
concerning any other lawful matter. Hence the right to make contracts
is an inherent and inalienable one, and any attempt to unreasonably
abridge it is opposed to the Constitution. As was aptly said in
Leep _vs._ Railway Co., _supra_: “When the subject of contract is
purely and exclusively private, unaffected by any public interest
or duty to person, to society, or government, and the parties are
capable of contracting, there is no condition existing upon which the
legislature can interfere for the purpose of prohibiting the contract
or controlling the terms thereof.” An instance of the care with which
this right to contract has been guarded may be found in chapter 48
of the Revised Statutes of this state, where an act, passed in 1867,
makes eight hours of labor in certain employments a legal day’s work,
“where there is no special contract or agreement to the contrary,”
and the second section of which act contains the following provision:
“Nor shall any person be prevented by anything herein contained from
working as many hours over time or extra hours as he or she may agree.”
An ordinance of the city of Los Angeles, making it a misdemeanor for
any contractor to employ any person to work more than eight hours a
day where the work was to be performed under any contract with the
city, was held to be unconstitutional and void, the supreme court of
California there saying: “It is claimed in support of the petition that
this ordinance was unconstitutional and void. We think this objection
is well taken. It is simply an attempt to prevent certain parties
from employing others in a lawful business, and paying them for their
services, and is a direct infringement of the right of such persons
to make and enforce their contracts. If the service to be performed
were unlawful, or against public policy, or the employment were such
as might be unfit for certain persons; as, for example, females
or infants, the ordinance might be upheld as a sanitary or police
regulation, but we cannot conceive of any theory upon which a city
could be justified in making it a misdemeanor for one of its citizens
to contract with another for services to be rendered, because the
contract is that he shall work more than a limited number of hours per
day.” In the case of Low _vs._ Printing Co. (recently decided by the
supreme court of Nebraska, June 6, 1894) 59 N. W. 362, an act of the
legislature of that state, providing that eight hours should constitute
a legal day’s work for all classes of mechanics, servants, and laborers
throughout the state, excepting those engaged in farm and domestic
labor, and making violation of the provisions a misdemeanor, was held
to be unconstitutional and void, both as being special legislation
and as attempting to prevent persons legally competent to enter into
contracts from making their own contracts.
But it is claimed on behalf of defendant in error that this section
can be sustained as an exercise of the police power of the state. The
police power of the state is that power which enables it to promote
the health, comfort, safety, and welfare of society. It is very broad
and far-reaching, but is not without its limitations. Legislative
acts passed in pursuance of it must not be in conflict with the
Constitution, and must have some relation to the ends sought to be
accomplished; that is to say, to the comfort, welfare, or safety of
society. Where the ostensible object of an enactment is to secure the
public comfort, welfare, or safety, it must appear to be adapted to
that end. It cannot invade the rights of persons and property under the
guise of a mere police regulation, when it is not such in fact; and
where such an act takes away the property of a citizen or interferes
with his personal liberty, it is the province of the courts to
determine whether it is really an appropriate measure for the promotion
of the comfort, safety, and welfare of society. There is nothing in the
title of the act of 1893 to indicate that it is a sanitary measure.
The first three sections contain provisions for keeping workshops
in a cleanly state, and for inspection to ascertain whether they
are so kept. But there is nothing in the nature of the employment
contemplated by the act which is in itself unhealthy or unlawful or
injurious to the public morals or welfare. Laws restraining the sale
and use of opium and intoxicating liquors have been sustained as valid
under the police power. Undoubtedly, the public health, welfare, and
safety may be endangered by the general use of opium and intoxicating
drinks. But it cannot be said that the same consequences are likely
to flow from the manufacture of clothing, wearing apparel, and other
similar articles. “The manufacture of cloth is an important industry,
essential to the welfare of the community.” We are not aware that the
preparation and manufacture of tobacco into cigars is dangerous to the
public health. It is not the nature of the things done, but the sex
of the persons doing them, which is made the basis of the claim that
the act is a measure for the promotion of the public health. It is
sought to sustain the act as an exercise of the police power upon the
alleged ground that it is designed to protect woman on account of her
sex and physique. It will not be denied that woman is entitled to the
same rights, under the constitution, to make contracts with reference
to her labor, as are secured thereby to men. The first section of the
fourteenth amendment to the Constitution of the United States provides:
“No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor shall
any state deprive any person of life, liberty, or property without due
process of law, nor deny to any person within its jurisdiction the
equal protection of the law.” It has been held that a woman is both
a “citizen” and a “person” within the meaning of this section. The
privileges and immunities here referred to are, in general, “protection
by the government, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety, subject,
nevertheless, to such restraints as the government may prescribe for
the general good of the whole.” As a “citizen,” woman has the right
to acquire and possess property of every kind. As a “person,” she has
the right to claim the benefit of the constitutional provision that
she shall not be deprived of life, liberty, or property without due
process of law. Involved in these rights thus guaranteed to her is the
right to make and enforce contracts. The law accords to her, as to
every other citizen, the right to gain a livelihood by intelligence,
honesty, and industry in the arts, the sciences, the professions, or
other vocations. Before the law, her right to a choice of vocations
cannot be said to be denied or abridged on account of sex. The tendency
of legislation in this state has been to recognize the rights of woman
in the particulars here specified. The act of 1867, as above quoted,
by the use of the words “he or she,” plainly declares that no woman
shall be prevented by anything therein contained from working as many
hours overtime or extra hours as she may agree; and thereby recognizes
her right to contract for more than eight hours of work in one day.
An act approved March 22, 1872, entitled “An act to secure freedom in
the selection of an occupation,” etc., provides that “no person shall
be precluded or debarred from any occupation, profession or employment
(except military) on account of sex.” The married woman’s act of
1874 authorizes a married woman to sue and be sued without joining
her husband, and provides that contracts may be made and liabilities
incurred by her and enforced against her to the same extent and in
the same manner as if she were unmarried; and that she may receive,
use, and possess her own earnings, and sue for the same in her own
name, free from the interference of her husband or his creditors.
Section 5 of the act of 1893 is broad enough to include married women
and adult single women, as well as minors. As a general thing, it is
the province of the legislature to determine what regulations are
necessary to protect the public health and secure the public safety and
welfare. But, inasmuch as sex is no bar, under the constitution and
law, to the endowment of woman with the fundamental and inalienable
rights of liberty and property, which include the right to make her
own contracts, the mere fact of sex will not justify the legislature
in putting forth the police power of the state for the purpose of
limiting her exercise of those rights, unless the courts are able to
see that there is some fair, just, and reasonable connection between
such limitation and the public health, safety, or welfare proposed to
be secured by it. People _vs._ Gillson, _supra_.
Counsel for the people refer to statements in the text-books
recognizing the propriety of regulations which forbid women to
engage in certain kinds of work altogether. Thus it is said in
Cooley on Constitutional Limitations, that “some employments ... may
be admissible for males and improper for females, and regulations
recognizing the impropriety, and forbidding women engaging in them,
would be open to no reasonable objection.” Attention is also called to
the above-mentioned act of March 22, 1872, which makes an exception
of military service, and provides that nothing in the act shall be
construed as requiring any female to work on streets or roads, or
serve on juries. But, without stopping to comment upon measures of
this character, it is sufficient to say that what is said in reference
to them has no application to the act of 1893. That act is not based
upon the theory that the manufacture of clothing, wearing apparel,
and other articles is an improper occupation for women to be engaged
in. It does not inhibit their employment in factories or workshops.
On the contrary, it recognizes such places as proper for them to work
in by permitting their labor therein during eight hours of each day.
The question here is not whether a particular employment is a proper
one for the use of female labor, but the question is whether, in an
employment which is conceded to be lawful in itself, and suitable for
woman to engage in, she shall be deprived of the right to determine
for herself how many hours she can and may work during each day. There
is no reasonable ground--at least none which has been made manifest
to us in the arguments of counsel--for fixing upon eight hours in
one day as the limit within which woman can work without injury to
her physique, and beyond which, if she work, injury will necessarily
follow. But the police power of the state can only be permitted to
limit or abridge such a fundamental right as the right to make
contracts when the exercise of such power is necessary to promote the
health, comfort, welfare, or safety of society or the public; and it
is questionable whether it can be exercised to prevent injury to the
individual engaged in a particular calling. The court of appeals of New
York, in passing upon the validity of an act “to improve the public
health by prohibiting the manufacture of cigars and preparation of
tobacco in any form in tenement houses,” etc., has said: “To justify
this law, it would not be sufficient that the use of tobacco may be
injurious to some persons, or that its manufacture may be injurious to
those who are engaged in its preparation and manufacture; but it would
have to be injurious to the public health.” In re Jacobs, _supra_.
Tiedeman, in his work on Limitations of Police Power, says: “In so far
as the employment of a certain class in a particular occupation may
threaten or inflict damage upon the public or third persons, there
can be no doubt as to the constitutionality of any statute which
prohibits their prosecution of that trade. But it is questionable,
except in the case of minors, whether the prohibition can rest upon
the claim that the employment will prove hurtful to them.... There can
be no more justification for the prohibition of the prosecution of
certain callings by women because the employment will prove hurtful to
themselves than it would be for the state to prohibit men from working
in the manufacture of white lead because they are apt to contract lead
poisoning, or to prohibit occupation in certain parts of iron-smelting
works, because the lives of the men so engaged are materially
shortened.” Section 86.
We are also referred to statements made in some of the text-books to
the effect that the legislature may limit the hours of labor of women
in manufacturing establishments. These statements appear to be based
entirely upon the decision of the supreme court of Massachusetts in
Com. _vs._ Hamilton Manuf’g Co., 120 Mass. 385. There it was held
that an act providing that no woman over the age of 18 years should
be employed by any person, firm, or corporation in any manufacturing
establishment more than 10 hours in any one day was valid. But,
under the Constitution of Massachusetts (part 2, c. 1, § 1, Art. 4),
the legislature has power to ordain all manner of reasonable and
wholesome statutes, with or without penalties, not repugnant to the
Constitution, “as they shall judge to be for the good and welfare of
the commonwealth, and for the governing and ordering thereof, and of
the subjects of the same.” The decision referred to was evidently made
in view of the large discretion so vested in the legislative branch of
the government; and it was said that the act ought to be maintained
as a health or police regulation, because the legislature deemed the
employment of manufacturing dangerous to health. But the Massachusetts
case is not in line with the current of authority, as it assumes
that the police power is practically without limitation. As has been
already stated, the legislature cannot so use that power as to invade
the fundamental rights of the citizen; and it is for the courts to
decide whether a measure, which assumes to have been passed in the
interest of the public health, really “relates to, and is convenient
and appropriate to promote, the health.” We said in Lake View _vs._
Rose Hill Cemetery Co., 70 Ill. 191: “As a general proposition, it may
be stated it is the province of the law-making power to determine when
the exigency exists calling into exercise this power. What are the
subjects of its exercise is clearly a judicial question.” The reasoning
of the opinion in the Massachusetts case cited does not seem to us to
be sound. It assumes that there is no infringement upon the employer’s
right to contract, because he may employ as many persons or as much
labor as he chooses; nor upon the employee’s right to contract, because
she may labor as many hours as she chooses in some other occupation
than that specified in the statute. This is a begging of the question.
The right to contract would be valueless if it could not be exercised
with reference to the particular subject-matter in hand. If its
exercise is forbidden between two persons competent to contract, and
concerning a lawful subject of contract, it is none the less abridged
because other persons may be permitted to contract, or because the
same persons may be at liberty to contract about some other matter. We
cannot more appropriately close the discussion of this branch of the
case than by quoting, and adopting as our own, the following words of
the New York court of appeals in re Jacobs, _supra_: “When a health
law is challenged in the courts as unconstitutional on the ground that
it arbitrarily interferes with personal liberty and private property,
without due process of law, the courts must be able to see that it has
at least in fact some relation to the public health, that the public
health is the end actually aimed at, and that it is appropriate and
adapted to that end. This we have not been able to see in this law,
and we must, therefore, pronounce it unconstitutional and void. In
reaching this conclusion, we have not been unmindful that the power
which courts possess to condemn legislative acts which are in conflict
with the supreme law should be exercised with great caution, and even
with reluctance. But, as said by Chancellor Kent: ‘It is only by the
free exercise of this power that courts of justice are enabled to repel
assaults and to protect every part of the government and every member
of the community from undue and destructive innovations upon their
charter rights.’”
* * * * *
Our conclusion is that section 5 of the act of 1893, and the first
clause of section 10 thereof, are void and unconstitutional for the
reasons here stated. These are the only portions of the act which have
been attacked in the argument of counsel. No reason has been pointed
out why they are not distinct and separate from the balance of the
act. The rule is that, where a part of a statute is unconstitutional,
the remainder will not be declared to be unconstitutional also, if the
two are distinct and separable, so that the latter may stand though
the former becomes of no effect. We do not wish to be understood by
anything herein said as holding that section 5 would be invalid if it
was limited in its terms to females who are minors. The judgment of the
criminal court of Cook county is reversed, and the cause is remanded
to that court, with directions to dismiss the prosecution. Reversed and
remanded.
APPENDIX III
HOLDEN _vs._ HARDY
(Supreme Court of the United States. February 28, 1898.)
CONSTITUTIONAL LAW--DUE PROCESS--EQUAL PROTECTION--EIGHT-HOUR LAWS
1. “Due process of law” implies at least a conformity with natural and
inherent principles of justice, and forbids that one man’s property, or
right to property, shall be taken for the benefit of another, or for
the benefit of the state, without compensation, and that no one shall
be condemned in his person or property without an opportunity of being
heard in his own defense.
2. The Utah statute forbidding the employment of workingmen for more
than eight hours per day in mines, and in the smelting, reduction, or
refining of ores or metals, is within the police power of the state,
and not an unconstitutional interference with the right of private
contract, or a denial of due process of law or the equal protection of
the laws.
Mr. Justice Brewer and Mr. Justice Peckham dissenting.
In Error to the Supreme Court of the State of Utah.
These were writs of error to review two judgments of the Supreme
Court of the state of Utah denying application of the plaintiff in
error, Holden, for his discharge upon two writs of habeas corpus, and
remanding him to the custody of the sheriff of Salt Lake county.
The facts in case No. 264 were substantially as follows: On June
20, 1896, complaint was made to a justice of the peace of Salt Lake
City that the petitioner, Holden, had unlawfully employed “one John
Anderson to work and labor as a miner in the underground workings of
the Old Jordan Mine, in Bingham cañon, in the county aforesaid, for
the period of ten hours each day; and said defendant, on the date
aforesaid and continuously since said time, has unlawfully required
said John Anderson, under and by virtue of said employment, to work
and labor in the underground workings of the mine aforesaid for
the period of ten hours each day, and that said employment was not
in case of an emergency, or where life or property was in imminent
danger,--contrary,” etc.
Defendant, Holden, having been arrested upon a warrant issued upon
said complaint, admitted the facts set forth therein, but said he was
not guilty, because he is a native-born citizen of the United States,
residing in the state of Utah; that the said John Anderson voluntarily
engaged his services for the hours per day alleged; and, that the facts
charged did not constitute a crime, because the act of the state of
Utah which creates and defines the supposed offense is repugnant to the
Constitution of the United States in these respects:
“It deprives the defendant and all employers and employees of the
right to make contracts in a lawful way, and for lawful purposes.
“It is class legislation, and not equal or uniform in its provisions.
“It deprives the defendant and employers and employees of the equal
protection of the laws, abridges the privileges and immunities of the
defendant as a citizen of the United States, and deprives him of his
property and liberty without due process of law.”
The court, having heard the evidence, found the defendant guilty as
charged in the complaint, imposed a fine of $50 and costs, and ordered
that the defendant be imprisoned in the county jail for a term of 57
days, or until such fine and costs be paid.
Thereupon petitioner sued out a writ of habeas corpus from the Supreme
Court of the state; annexing a copy of the proceedings before the
justice of the peace, and praying his discharge. The Supreme Court
denied his application, and remanded him to the custody of the
sheriff, whereupon he sued out this writ of error, assigning the
unconstitutionality of the law.
In the second case the complaint alleged the unlawful employment
by Holden of one William Hooley to work and labor in a certain
concentrating mill--the same being an institution for the reduction of
ores--for the period of 12 hours per day. The proceedings in this case
were precisely the same as in the prior case, and it was admitted that
there was no distinction in principle between the two cases.
J. M. Wilson, for plaintiff in error. Chas. J. Pence, for defendant in
error.
Mr. Justice Brown, after stating the facts in the foregoing language,
delivered the opinion of the court.
This case involves the constitutionality of an act of the legislature
of Utah entitled “An act regulating the hours of employment in
underground mines and in smelters and ore reduction works.” The
following are the material provisions:
“Section 1. The period of employment of workingmen in all underground
mines or workings shall be eight hours per day, except in cases of
emergency where life or property is in imminent danger.
“Sec. 2. The period of employment of workingmen in smelters and all
other institutions for the reduction or refining of ores or metals
shall be eight hours per day, except in cases of emergency where life
or property is in imminent danger.
“Sec. 3. Any person, body corporate, agent, manager, or employer, who
shall violate any of the provisions of sections one and two of this
act, shall be guilty of a misdemeanor.”
The Supreme Court of Utah was of opinion that, if authority in the
legislature were needed for the enactment of the statute in question,
it was found in that part of article 16 of the constitution of the
state which declared that “the legislature shall pass laws to provide
for the health and safety of employees in factories, smelters and
mines.” As the article deals exclusively with the rights of labor, it
is here reproduced in full, as exhibiting the authority under which
the legislature acted, and as throwing light upon its intention in
enacting the statute in question (Laws 1896, p. 219):
“Section 1. The rights of labor shall have just protection through laws
calculated to promote the industrial welfare of the state.
“Sec. 2. The legislature shall provide by law for a board of labor,
conciliation and arbitration which shall fairly represent the interests
of both capital and labor. The board shall perform duties and receive
compensation as prescribed by law.
“Sec. 3. The legislature shall prohibit:
“(1) The employment of women, or of children under the age of fourteen
years, in underground mines.
“(2) The contracting of convict labor.
“(3) The labor of convicts outside prison grounds, except on public
works under the direct control of the state.
“(4) The political and commercial control of employees.
“Sec. 4. The exchange of blacklists by railroad companies, or other
corporations, associations or persons is prohibited.
“Sec. 5. The right of action to recover damages for injuries resulting
in death shall never be abrogated, and the amount recoverable shall not
be subject to any statutory limitation.
“Sec. 6. Eight hours shall constitute a day’s work on all works or
undertakings carried on or aided by the state, county or municipal
governments; and the legislatures shall pass laws to provide for the
health and safety of employees in factories, smelters and mines.
“Sec. 7. The legislature, by appropriate legislation, shall provide for
the enforcement of the provisions of this article.”
The validity of the statute in question is, however, challenged upon
the ground of an alleged violation of the fourteenth amendment to the
Constitution of the United States, in that it abridges the privileges
or immunities of citizens of the United States, deprives both the
employer and the laborer of his property without due process of law,
and denies to them the equal protection of the laws. As the three
questions of abridging their immunities, depriving them of their
property, and denying them the protection of the laws, are so connected
that the authorities upon each are, to a greater or less extent,
pertinent to the others, they may properly be considered together.
Prior to the adoption of the fourteenth amendment, there was a similar
provision against deprivation of life, liberty, or property without
due process of law incorporated in the fifth amendment; but as the
first eight amendments to the Constitution were obligatory only upon
congress, the decisions of this court under this amendment have but
a partial application to the fourteenth amendment, which operates
only upon the action of the several states. The fourteenth amendment,
which was finally adopted July 28, 1868, largely expanded the power
of the federal courts and congress, and for the first time authorized
the former to declare invalid all laws and judicial decisions of the
states abridging the rights of citizens, or denying them the benefit of
due process of law.
This amendment was first called to the attention of this court in
1872, in an attack upon the constitutionality of a law of the state of
Louisiana, passed in 1869, vesting in a slaughter-house company therein
named the sole and exclusive privilege of conducting and carrying on a
live-stock landing and slaughter-house business within certain limits
specified in the act, and requiring all animals intended for sale and
slaughter to be landed at their wharves or landing places. While the
court in that case recognized the fact that the primary object of this
amendment was to secure to the colored race, then recently emancipated,
the full enjoyment of their freedom, the further fact that it was not
restricted to that purpose was admitted both in the prevailing and
dissenting opinions, and the validity of the act was sustained as a
proper police regulation for the health and comfort of the people. A
majority of the cases which have since arisen have turned, not upon a
denial to the colored race of rights therein secured to them, but upon
alleged discriminations in matters entirely outside of the political
relations of the parties aggrieved.
These cases may be divided, generally, into two classes: First, where
a state legislature or a state court is alleged to have unjustly
discriminated in favor of or against a particular individual or class
of individuals, as distinguished from the rest of the community,
or denied them the benefit of due process of law; second, where
the legislature has changed its general system of jurisprudence by
abolishing what had been previously considered necessary to the proper
administration of justice, or the protection of the individual.
Among those of the first class, which, for the sake of brevity, may be
termed “unjust discriminations,” are those wherein the colored race was
alleged to have been denied the right of representation upon juries, as
well as those wherein the state was charged with oppressing and unduly
discriminating against persons of the Chinese race, and those wherein
it was sought, under this amendment, to enforce the right of women to
suffrage, and to admission to the learned professions.
To this class is also referable all those cases wherein the state
courts were alleged to have denied to particular individuals the
benefit of due process of law secured to them by the statutes of the
state, as well as that other large class, to be more specifically
mentioned hereafter, wherein the state legislature was charged with
having transcended its proper police power in assuming to legislate for
the health or morals of the community.
Cases arising under the second class, wherein a state has chosen to
change its methods of trial to meet a popular demand for simpler
and more expeditious forms of administering justice, are much less
numerous, though of even greater importance, than the others. A
reference to a few of these cases may not be inappropriate in this
connection. Thus, in Walker _vs._ Sauvinet, 92 U. S. 90, which was an
action brought by a colored man against the keeper of a coffee house
in New Orleans for refusing him refreshments, in violation of the
constitution of the state securing to the colored race equal rights and
privileges in such cases, a statute of the state provided that such
cases should be tried by jury, if either party demanded it, but, if
the jury failed to agree, the case should be submitted to the judge,
who should decide the same. It was held that a trial by jury was not a
privilege or immunity of citizenship which the states were forbidden to
abridge, but the requirement of due process of law was met if the trial
was had according to the settled course of judicial proceedings. “Due
process of law,” said Chief Justice Waite, “is process due according
to the law of the land. This process in the states is regulated by the
law of the state.” This law was held not to be in conflict with the
Constitution of the United States.
* * * * *
In Railway Co. _vs._ Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, it was
said that a statute in Kansas abolishing the fellow-servant doctrine,
as applied to railway accidents, did not deny to railroads the equal
protection of the laws, and was not in conflict with the fourteenth
amendment. The same ruling was made with reference to statutes
requiring railways to erect and maintain fences and cattle guards, and
make them liable in double the amount of damages claimed, for the want
of them.
In Hallinger _vs._ Davis, 146 U. S. 314, 13 Sup. Ct. 105, it was held
that a state statute conferring upon an accused person the right to
waive a trial by jury, and to elect to be tried by the court, and
conferring power upon the court to try the accused in such case, was
not a violation of the due-process clause of the fourteenth amendment.
* * * * *
An examination of both these classes of cases under the fourteenth
amendment will demonstrate that, in passing upon the validity of
state legislation under that amendment, this court has not failed to
recognize the fact that the law is, to a certain extent, a progressive
science; that, in some of the states, methods of procedure which, at
the time the constitution was adopted, were deemed essential to the
protection and safety of the people, or to the liberty of the citizen,
have been found to be no longer necessary; that restrictions which had
formerly been laid upon the conduct of individuals, or of classes of
individuals, had proved detrimental to their interests, while, upon
the other hand, certain other classes of persons (particularly those
engaged in dangerous or unhealthful employments), have been found to
be in need of additional protection. Even before the adoption of the
constitution, much had been done toward mitigating the severity of
the common law, particularly in the administration of its criminal
branch. The number of capital crimes in this country, at least, had
been largely decreased. Trial by ordeal and by battle had never existed
here, and had fallen into disuse in England. The earlier practise of
the common law, which denied the benefit of witnesses to a person
accused of felony, had been abolished by statute, though, so far as it
deprived him of the assistance of counsel and compulsory process for
the attendance of his witnesses, it had not been changed in England.
But, to the credit of her American colonies, let it be said that so
oppressive a doctrine had never obtained a foothold there.
The present century has originated legal reforms of no less importance.
The whole fabric of special pleading, once thought to be necessary to
the elimination of the real issue between the parties, has crumbled
to pieces. The ancient tenures of real estate have been largely swept
away, and land is now transferred almost as easily and cheaply as
personal property. Married women have been emancipated from the control
of their husbands, and placed upon a practical equality with them, with
respect to the acquisition, possession, and transmission of property.
Imprisonment for debt has been abolished. Exemptions from execution
have been largely added to, and in most of the states homesteads are
rendered incapable of seizure and sale upon forced process. Witnesses
are no longer incompetent by reason of interest, even though they be
parties to the litigation. Indictments have been simplified, and an
indictment for the most serious of crimes is now the simplest of all.
In several of the states, grand juries, formerly the only safeguard
against a malicious prosecution, have been largely abolished; and in
others the rule of unanimity, so far as applied to civil cases, has
given way to verdicts rendered by a three-fourths majority. This case
does not call for an expression of opinion as to the wisdom of these
changes, or their validity under the fourteenth amendment, although
the substitution of prosecution by information in lieu of indictment
was recognized as valid in Hurtado _vs._ California, 110 U. S., 516, 4
Sup. Ct., 111, 292. They are mentioned only for the purpose of calling
attention to the probability that other changes of no less importance
may be made in the future, and that, while the cardinal principles of
justice are immutable, the methods by which justice is administered
are subject to constant fluctuations, and that the Constitution of the
United States, which is necessarily and to a large extent inflexible,
and exceedingly difficult of amendment, should not be so construed as
to deprive the states of the power to so amend their laws as to make
them conform to the wishes of the citizens, as they may deem best
for the public welfare, without bringing them into conflict with the
supreme law of the land.
Of course, it is impossible to forecast the character or extent of
these changes; but in view of the fact that, from the day Magna Charta
was signed to the present moment, amendments to the structure of the
law have been made with increasing frequency, it is impossible to
suppose that they will not continue, and the law be forced to adapt
itself to new conditions of society, and particularly to the new
relations between employers and employees, as they arise.
* * * * *
The same subject was also elaborately discussed by Mr. Justice
Matthews in delivering the opinion in Hurtado _vs._ California:
“This flexibility and capacity for growth is the peculiar boast and
excellence of the common law.... The Constitution of the United States
was ordained, it is true, by descendants of Englishmen, who inherited
the traditions of English law and history; but it was made for an
undefined and expanding future, and for a people gathered and to be
gathered from many nations, and of many tongues. And, while we take
just pride in the principles and institutions of common law, we are
not to forget that, in lands where other systems of jurisprudence
prevail, the ideas and processes of civil justice are also not
unknown. Due process of law, in spite of the absolutism of continental
governments, is not alien to that code which survived the Roman
Empire as the foundation of modern civilization in Europe, and which
has given us that fundamental maxim of distributive justice,--‘_Suum
cuique tribuere._’ There is nothing in Magna Charta, rightly construed
as a broad charter of public right and law, which ought to exclude
the best ideas of all systems and of every age; and, as it was the
characteristic principle of the common law to draw its inspiration from
every fountain of justice, we are not to assume that the sources of
its supply have been exhausted. On the contrary, we should expect that
the new and various experiences of our own situation and system will
mold and shape it into new, and not less useful, forms.” We have seen
no reason to doubt the soundness of these views. In the future growth
of the nation, as heretofore, it is not impossible that congress may
see fit to annex territories whose jurisprudence is that of the civil
law. One of the considerations moving to such annexation might be the
very fact that the territory so annexed should enter the Union with its
traditions, laws and systems of administration unchanged. It would be
a narrow construction of the Constitution to require them to abandon
these, or to substitute for a system which represented the growth of
generations of inhabitants a jurisprudence with which they had had no
previous acquaintance or sympathy.
We do not wish, however, to be understood as holding that this power
is unlimited. While the people of each state may doubtless adopt such
systems of laws as best conform to their own traditions and customs,
the people of the entire country have laid down in the Constitution of
the United States certain fundamental principles, to which each member
of the Union is bound to accede as a condition of its admission as a
state. Thus, the United States are bound to guaranty to each state
a republican form of government, and the tenth section of the first
article contains certain other specified limitations upon the power
of the several states, the object of which was to secure to congress
paramount authority with respect to matters of universal concern.
In addition, the fourteenth amendment contains a sweeping provision
forbidding the states from abridging the privileges and immunities of
citizens of the United States, and denying them the benefit of due
process or equal protection of the laws.
This court has never attempted to define with precision the words
“due process of law,” nor is it necessary to do so in this case. It
is sufficient to say that there are certain immutable principles of
justice, which inhere in the very idea of free government, which no
member of the Union may disregard, as that no man shall be condemned in
his person or property without due notice, and an opportunity of being
heard in his defense. What shall constitute due process of law was
perhaps as well stated by Mr. Justice Curtis in Murray’s Lessees _vs._
Land Co., 18 How. 272, 276, as anywhere. He said: “The Constitution
contains no description of those processes which it was intended to
allow or forbid. It does not even declare what principles are to be
applied to ascertain whether it be due process. It is manifest that it
was not left to the legislative power to enact any process which might
be devised. The article is a restraint on the legislative as well as on
the executive and judicial powers of the government, and cannot be so
construed as to leave congress free to make any process ‘due process
of law’ by its mere will. To what principles, then, are we to resort
to ascertain whether this process enacted by congress is due process?
To this the answer must be twofold: We must examine the Constitution
itself, to see whether this process be in conflict with any of its
provisions. If not found to be so, we must look to those settled usages
and modes of proceeding existing in the common and statute law of
England, before the emigration of our ancestors, and which are shown
not to have been unsuited to their civil and political condition, by
having been acted on by them after the settlement of this country.”
It was said by Mr. Justice Miller, in delivering the opinion of this
court in Davidson _vs._ New Orleans, 96 U. S. 97, that the words “law
of the land,” as used in Magna Charta, implied a conformity with
the “ancient and customary laws of the English people,” and that it
was wiser to ascertain their intent and application by the “gradual
process of judicial inclusion and exclusion as the cases presented for
decision shall require, with the reasoning on which such decisions may
be founded.” Recognizing the difficulty in defining with exactness
the phrase “due process of law,” it is certain that these words imply
a conformity with natural and inherent principles of justice, and
forbid that one man’s property or right to property, shall be taken
for the benefit of another, or for the benefit of the state, without
compensation, and that no one shall be condemned in his person or
property without an opportunity of being heard in his own defense.
As the possession of property, of which a person cannot be deprived,
doubtless implies that such property may be acquired, it is safe to
say that a state law which undertakes to deprive any class of persons
of the general power to acquire property would also be obnoxious to
the same provision. Indeed, we may go a step further, and say that as
property can only be legally acquired, as between living persons, by
contract, a general prohibition against entering into contracts with
respect to property, or having as their object the acquisition of
property, would be equally invalid.
The latest utterance of this court upon this subject is contained in
the case of Allgeyer _vs._ Louisiana, 165 U. S. 578, 591, 17 Sup. Ct.
427, in which it was held that an act of Louisiana which prohibited
individuals within the state from making contracts of insurance
with corporations doing business in New York was a violation of the
fourteenth amendment. In delivering the opinion of the court, Mr.
Justice Peckham remarked: “In the privilege of pursuing an ordinary
calling or trade, and of acquiring, holding, and selling property
must be embraced the right to make all proper contracts in relation
thereto; and, although it may be conceded that this right to contract
in relation to persons or property, or to do business within the
jurisdiction of the state, may be regulated, and sometimes prohibited,
when the contracts or business conflict with the policy of the state
as contained in its statutes, yet the power does not and cannot extend
to prohibiting a citizen from making contracts of the nature involved
in this case, outside of the limits and jurisdiction of the state, and
which are also to be performed outside of such jurisdiction.”
This right of contract, however, is itself subject to certain
limitations which the state may lawfully impose in the exercise of
its police powers. While this power is inherent in all governments,
it has doubtless been greatly expanded in its application during
the past century, owing to an enormous increase in the number of
occupations which are dangerous or so far detrimental to the health of
employees as to demand special precautions for their well-being and
protection, or the safety of adjacent property. While this court has
held (notably in the cases of New Orleans _vs._ Davidson, 95 U. S.
465, and Yick Wo _vs._ Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064) that
the police power cannot be put forward as an excuse for oppressive and
unjust legislation, it may be lawfully resorted to for the purpose of
preserving the public health, safety, or morals, or the abatement of
public nuisances, and a large discretion “is necessarily vested in the
legislature, to determine, not only what the interests of the public
require, but what measures are necessary for the protection of such
interests.” Lawton _vs._ Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499.
The extent and limitations upon this power are admirably stated by
Chief Justice Shaw in the following extract from his opinion in
Massachusetts _vs._ Alger, 7 Cush. 84.
“We think it a settled policy, growing out of the nature of
well-ordered civil society, that every holder of property, however
absolute and unqualified his title, holds it under the implied
liability that its use may be so regulated that it shall not be
injurious to the equal enjoyment of others having an equal right
to the enjoyment of their property, nor injurious to the rights of
the community. All property in this commonwealth, as well in the
interior as that bordering on the tide waters, is derived directly
or indirectly from the government, and held subject to those general
regulations which are necessary to the common good and general welfare.
Rights of property, like all other social and conventional rights,
are subject to such reasonable limitation in their enjoyment as will
prevent them from being injurious, and to such reasonable restraints
and regulations by law as the legislature, under the government and
controlling power vested in them by the Constitution, may think
necessary and expedient.”
This power, legitimately exercised, can neither be limited by contract
nor bartered away by legislation.
While this power is necessarily inherent in every form of government,
it was, prior to the adoption of the constitution, but sparingly used
in this country. As we were then almost purely an agricultural people,
the occasion for any special protection of a particular class did not
exist. Certain profitable employments, such as lotteries and the sale
of intoxicating liquors, which were then considered to be legitimate,
have since fallen under the ban of public opinion, and are now either
altogether prohibited, or made subject to stringent police regulations.
The power to do this has been repeatedly affirmed by this court.
While the business of mining coal and manufacturing iron began in
Pennsylvania as early as 1716, and in Virginia, North Carolina, and
Massachusetts even earlier than this, both mining and manufacturing
were carried on in such a limited way, and by such primitive methods,
that no special laws were considered necessary, prior to the adoption
of the Constitution, for the protection of the operatives; but, in the
vast proportions which these industries have since assumed, it has been
found that they can no longer be carried on, with due regard to the
safety and health of those engaged in them, without special protection
against the dangers necessarily incident to these employments. In
consequence of this, laws have been enacted in most of the states
designed to meet these exigencies, and to secure the safety of persons
peculiarly exposed to these dangers. Within this general category are
ordinances providing for fire escapes for hotels, theaters, factories
and other large buildings; a municipal inspection of boilers; and
appliances designed to secure passengers upon railways and steamboats
against the dangers necessarily incident to these methods of
transportation. In states where manufacturing is carried on to a large
extent, provision is made for the protection of dangerous machinery
against accidental contact; for the cleanliness and ventilation of
working rooms; for the guarding of well holes, stairways, elevator
shafts; and for the employment of sanitary appliances. In others, where
mining is the principal industry, special provision is made for the
shoring up of dangerous walls; for ventilation shafts, bore holes,
escapement shafts, means of signaling the surface; for the supply of
fresh air, and the elimination, as far as possible, of dangerous gases;
for safe means of hoisting and lowering cages; for a limitation upon
the number of persons permitted to enter a cage; that cages shall be
covered; and that there shall be fences and gates around the top of
shafts, besides other similar precautions.
These statutes have been repeatedly enforced by the courts of the
several states; their validity assumed; and, so far as we are informed,
they have been uniformly held to be constitutional.
In Daniels _vs._ Hilgard, 77 Ill. 640, it was held that the legislature
had power, under the Constitution, to establish reasonable police
regulations for the operating of mines and collieries, and that an
act providing for the health and safety of persons employed in coal
mines, which required the owner or agent of every coal mine or colliery
employing ten men or more to make or cause to be made an accurate
map or plan of the workings of such coal mine or colliery, was not
unconstitutional, and that the question whether certain requirements
are a part of a system of police regulations adopted to aid in
the protection of life and health was properly one of legislative
determination, and that a court should not lightly interfere with such
determination, unless the legislature had manifestly transcended its
province.
In Pennsylvania _vs._ Bonnell, 8 Phila. 534, a law providing for the
ventilation of coal mines, for speaking tubes, and the protection of
cages, was held to be constitutional, and subject to strict enforcement.
But, if it be within the power of a legislature to adopt such means
for the protection of the lives of its citizens, it is difficult to
see why precautions may not also be adopted for the protection of
their health and morals. It is as much for the interest of the state
that the public health should be preserved as that life should be made
secure. With this end in view, quarantine laws have been enacted in
most, if not all, of the states; insane asylums, public hospitals, and
institutions for the care and education of the blind established; and
special measures taken for the exclusion of infected cattle, rags, and
decayed fruit. In other states laws have been enacted limiting the
hours during which women and children shall be employed in factories;
and while their constitutionality, at least as applied to women,
has been doubted in some of the states, they have been generally
upheld. Thus, in the case of Com. _vs._ Hamilton Mfg. Co., 120 Mass.
383, it was held that a statute prohibiting the employment of all
persons under the age of eighteen, and of all women laboring in any
manufacturing establishment more than sixty hours per week, violates no
contract of the commonwealth implied in the granting of a charter to a
manufacturing company, nor any right reserved under the constitution
to any individual citizen, and may be maintained as a health or police
regulation.
Upon the principles above stated, we think the act in question may
be sustained as a valid exercise of the police power of the state.
The enactment does not profess to limit the hours of all workmen, but
merely those who are employed in underground mines, or in the smelting,
reduction, or refining of ores or metals. These employments, when too
long pursued, the legislature has judged to be detrimental to the
health of the employees; and, so long as there are reasonable grounds
for believing that this is so, its decision upon this subject cannot be
reviewed by the federal courts.
While the general experience of mankind may justify us in believing
that men may engage in ordinary employments more than eight hours per
day without injury to their health, it does not follow that labor
for the same length of time is innocuous when carried on beneath the
surface of the earth, where the operative is deprived of fresh air and
sunlight, and is frequently subjected to foul atmosphere and a very
high temperature, or to the influence of noxious gases generated by the
processes of refining or smelting.
We concur in the following observations of the Supreme Court of Utah in
this connection:
“The conditions with respect to health of laborers in underground
mines doubtless differ from those in which they labor in smelters and
other reduction works on the surface. Unquestionably the atmosphere
and other conditions in mines and reduction works differ. Poisonous
gases, dust, and impalpable substances arise and float in the air in
stamp mills, smelters, and other works in which ores containing metals,
combined with arsenic or other poisonous elements or agencies, are
treated, reduced, and refined, and there can be no doubt that prolonged
effort, day after day, subject to such conditions and agencies, will
produce morbid, noxious, and often deadly effects in the human system.
Some organisms and systems will resist and endure such conditions
and effects longer than others. It may be said that labor in such
conditions must be performed. Granting that, the period of labor each
day should be of a reasonable length. Twelve hours per day would be
less injurious than fourteen, ten than twelve, and eight than ten. The
legislature has named eight. Such a period was deemed reasonable....
The law in question is confined to the protection of that class of
people engaged in labor in underground mines, and in smelters and other
works wherein ores are reduced and refined. This law applies only to
the classes subjected by their employment to the peculiar conditions
and effects attending underground mining and work in smelters, and
other works for the reduction and refining of ores. Therefore it is
not necessary to discuss or decide whether the legislature can fix the
hours of labor in other employments. Though reasonable doubts may exist
as to the power of the legislature to pass a law, or as to whether the
law is calculated or adapted to promote the health, safety, or comfort
of the people, or to secure good order or promote the general welfare,
we must resolve them in favor of the right of that department of
government.” 46 Pac. 1105.
The legislature has also recognized the fact, which the experience
of legislators in many states has corroborated, that the proprietors
of these establishments and their operatives do not stand upon
an equality, and that their interests are, to a certain extent,
conflicting. The former naturally desire to obtain as much labor as
possible from their employees, while the latter are often induced by
the fear of discharge to conform to regulations which their judgment,
fairly exercised, would pronounce to be detrimental to their health
or strength. In other words, the proprietors lay down the rules,
and the laborers are practically constrained to obey them. In such
cases self-interest is often an unsafe guide, and the legislature may
properly interpose its authority.
It may not be improper to suggest in this connection that although
the prosecution in this case was against the employer of labor, who
apparently, under the statute, is the only one liable, his defense is
not so much that his right to contract has been infringed upon, but
that the act works a peculiar hardship to his employees, whose right
to labor as long as they please is alleged to be thereby violated. The
argument would certainly come with better grace and greater cogency
from the latter class. But the fact that both parties are of full age,
and competent to contract, does not necessarily deprive the state
of the power to interfere, where the parties do not stand upon an
equality, or where the public health demands that one party to the
contract shall be protected against himself. “The state still retains
an interest in his welfare, however reckless he may be. The whole is no
greater than the sum of all the parts, and when the individual health,
safety, and welfare are sacrificed or neglected, the state must suffer.”
We have no disposition to criticise the many authorities which
hold that state statutes restricting the hours of labor are
unconstitutional. Indeed, we are not called upon to express an
opinion upon this subject. It is sufficient to say of them that they
have no application to cases where the legislature had adjudged that
a limitation is necessary for the preservation of the health of
employees, and there are reasonable grounds for believing that such
determination is supported by the facts. The question in each case
is whether the legislature has adopted the statute in exercise of a
reasonable discretion, or whether its action be a mere excuse for an
unjust discrimination, or the oppression or spoliation of a particular
class....
We are of opinion that the act in question was a valid exercise of
police power of the state, and the judgments of the Supreme Court of
Utah are therefore affirmed.
Mr. Justice Brewer and Mr. Justice Peckham dissented.
APPENDIX IV
IN RE JACOBS
(Court of Appeals of New York. January 20, 1885.)
CONSTITUTIONAL LAW--PUBLIC HEALTH--POLICE REGULATION
The act entitled “An act to improve the public health, by prohibiting
the manufacture of cigars and preparation of tobacco in any form, in
tenement houses, in certain cases,” (chap. 272; Laws 1884), held not
within the police power, and unconstitutional.
When a health law is challenged as unconstitutional on the ground that
it arbitrarily interferes with personal liberty and private property
without due process of law, the courts must be able to see that it has,
at least in fact, some relation to the public health, and that the
public health is the end actually aimed at, and that it is appropriate
and adapted to that end. Under the guise of police regulations,
personal rights and private property cannot be arbitrarily invaded, and
the determination of the legislature is not final or conclusive.
(Argued December 17, 1884; decided January 20, 1885.)
Appeal from an order of the General Term of the Supreme Court, first
department, reversing an order, made at Special Term, which dismissed
the writ of habeas corpus obtained by relator, the respondent herein,
to inquire into the cause of his detention.
The essential facts appear in the opinion. Cases cited by counsel
omitted.
Opinion of the Court, per EARL, J.
The relator Jacobs was arrested on the 14th day of May, 1884, on a
warrant issued by a police justice in the city of New York under the
act chapter 272 of the Laws of 1884, passed May 12, entitled “An act
to improve the public health by prohibiting the manufacture of cigars
and preparation of tobacco in any form in tenement-houses in certain
cases, and regulating the use of tenement-houses in certain cases.” On
the evidence of the complainant he was by the justice committed for
trial, and thereafter upon his petition, a justice of the Supreme Court
granted a writ of habeas corpus, to which a return was made, and upon
the hearing thereon the justice made an order dismissing the writ and
remanding him to prison. From that order he appealed to the General
Term of the Supreme Court, which reversed the order and discharged him
from prison, on the ground that the act under which he was arrested was
unconstitutional and therefore void. The district attorney on behalf
of the people then appealed to this court, and the sole question for
our determination is, whether the act of 1884, creating the offense
for which the relator was arrested, was a constitutional exercise of
legislative power.
The facts as they appeared before the police justice were as follows:
The relator at the time of his arrest lived with his wife and two
children in a tenement-house in the city of New York in which three
other families also lived. There were four floors in the house, and
seven rooms on each floor, and each floor was occupied by one family
living independently of the others, and doing their cooking in one
of the rooms so occupied. The relator at the time of his arrest was
engaged in one of his rooms in preparing tobacco and making cigars, but
there was no smell of tobacco in any part of the house except the room
where he was thus engaged.
These facts showed a violation of the provisions of the act which took
effect immediately upon its passage and the material portions of which
are as follows: “Section 1. The manufacture of cigars or preparation
of tobacco in any form on any floor, or in any part of any floor, in
any tenement-house is hereby prohibited, if such floor or any part
of such floor is by any person occupied as a home or residence for
the purpose of living, sleeping, cooking or doing any household work
therein. Section 2. Any house, building or portion thereof, occupied as
the home or residence of more than three families living independently
of one another, and doing their cooking upon the premises, is a
tenement-house within the meaning of this act. Section 3. The first
floor of said tenement house on which there is a store for the sale of
cigars and tobacco shall be exempt from the prohibition provided in
section one of this act. Section 5. Every person who shall be found
guilty of a violation of this act, or of having caused another to
commit such violation, shall be deemed guilty of a misdemeanor, and
shall be punished for every offense by a fine of not less than ten
dollars and not more than one hundred dollars or by imprisonment for
not less than ten days and not more than six months, or both such fine
and imprisonment. Section 6. This act shall apply only to cities having
over five hundred thousand inhabitants.”
What does this act attempt to do? In form, it makes it a crime for
a cigarmaker in New York and Brooklyn, the only cities in the State
having a population exceeding 500,000, to carry on a perfectly lawful
trade in his own home. Whether he owns the tenement-house or has hired
a room therein for the purpose of prosecuting his trade, he cannot
manufacture therein his own tobacco into cigars for his own use or for
sale, and he will become a criminal for doing that which is perfectly
lawful outside of the two cities named--everywhere else, so far as
we are able to learn, in the whole world. He must either abandon the
trade by which he earns a livelihood for himself and family, or, if
able, procure a room elsewhere, or hire himself out to one who has a
room upon such terms as, under the fierce competition of trade and
the inexorable laws of supply and demand, he may be able to obtain
from his employer. He may choose to do his work where he can have the
supervision of his family and their help, and such choice is denied
him. He may choose to work for himself rather than for a taskmaster,
and he is left without freedom of choice. He may desire the advantage
of cheap production in consequence of his cheap rent and family help,
and of this he is deprived. In the unceasing struggle for success
and existence which pervades all societies of men, he may be deprived
of that which will enable him to maintain his hold, and to survive.
He may go to a tenement-house, and finding no one living, sleeping,
cooking or doing any household work upon one of the floors, hire a
room upon such floor to carry on his trade, and afterward some one may
commence to sleep or to do some household work upon such floor, even
without his knowledge, and he at once becomes a criminal in consequence
of another’s act. He may go to a tenement-house, and finding but two
families living therein independently, hire a room, and afterward by
subdivision of the families, or a change in their mode of life, or in
some other way, a fourth family begins to live therein independently,
and thus he may become a criminal without the knowledge, or possibly
the means of knowledge that he was violating any law. It is, therefore,
plain that this law interferes with the profitable and free use of
his property by the owner or lessee of a tenement-house who is a
cigarmaker, and trammels him in the application of his industry and the
disposition of his labor, and thus, in a strictly legitimate sense, it
arbitrarily deprives him of his property and of some portion of his
personal liberty.
The constitutional guaranty that no person shall be deprived of his
property without due process of law may be violated without the
physical taking of property for public or private use. Property
may be destroyed, or its value may be annihilated; it is owned and
kept for some useful purpose and it has no value unless it can be
used. Its capability for enjoyment and adaptability to some use are
essential characteristics and attributes without which property cannot
be conceived; and hence any law which destroys it or its value, or
takes away any of its essential attributes, deprives the owner of his
property.
The constitutional guaranty would be of little worth, if the
legislature could, without compensation, destroy property or its value,
deprive the owner of its use, deny him the right to live in his own
house, or to work at any lawful trade therein. If the legislature has
the power under the Constitution to prohibit the prosecution of one
lawful trade in a tenement-house, then it may prevent the prosecution
of all trades therein. “Questions of power,” says Chief Justice
Marshall in Brown _vs._ State of Maryland (12 Wheat. 419), “do not
depend upon the degree to which it may be exercised. If it may be
exercised at all it must be exercised at will of those in whose hands
it is placed.” Blackstone in his classification of fundamental rights
says: “The third absolute right inherent in every Englishman is that
of property which consists in the free use, enjoyment and disposal
of all his acquisitions without any control or diminution, save only
by the law of the land.” (1 Com. 138), in Pumpelly _vs._ Green Bay
Co. (13 Wall. 166, 177), Miller, J., says: “There may be such serious
interruption to the common and necessary use of property as will be
equivalent to a taking within the meaning of the Constitution.” In
Wynehamer _vs._ People (13 N. Y. 378, 398), Comstock, J., says: “When a
law annihilates the value of property and strips it of its attributes,
by which alone it is distinguished as property, the owner is deprived
of it according to the plainest interpretation, and certainly within
the constitutional provision intended expressly to shield personal
rights from the exercise of arbitrary power.” In People _vs._ Otis
(90 N. Y. 48), Andrews, J., says: “Depriving an owner of property of
one of its attributes is depriving him of his property within the
constitutional provision.”
So, too, one may be deprived of his liberty and his constitutional
rights thereto violated without the actual imprisonment or restraint
of his person. Liberty, in its broad sense as understood in this
country, means the right, not only of freedom from actual servitude,
imprisonment or restraint, but the right of one to use his faculties in
all lawful ways, to live and work where he will, to earn his livelihood
in any lawful calling, and to pursue any lawful trade or avocation.
All laws, therefore, which impair or trammel these rights, which limit
one in his choice of a trade or profession, or confine him to work or
live in a specified locality, or exclude him from his own house, or
restrain his otherwise lawful movements (except as such laws may be
passed in the exercise by the legislature of the police power, which
will be noticed later), are infringements upon his fundamental rights
of liberty, which are under constitutional protection. In Butchers’
Union Co. _vs._ Crescent City Co. (111 U. S. 746), Field, J., says:
That among the inalienable rights as proclaimed in the Declaration
of Independence “is the right of men to pursue any lawful business
or vocation in any manner not inconsistent with the equal rights of
others, which may increase their property or develop their faculties,
so as to give them their highest enjoyment. The common business and
callings of life, the ordinary trades and pursuits which are innocent
in themselves, and have been followed in all communities from time
immemorial, must, therefore, be free in this country to all alike upon
the same terms. The right to pursue them without let or hindrance,
except that which is applied to all persons of the same age, sex and
condition, is a distinguishing privilege of citizens of the United
States, and an essential element of that freedom which they claim
as their birthright.” In the same case Bradley, J., says: “I hold
that the liberty of pursuit, the right to follow any of the ordinary
callings of life, is one of the privileges of a citizen of the United
States,” of which he cannot be deprived without invading his right to
liberty within the meaning of the Constitution. In Live Stock, etc.,
Association _vs._ Crescent City, etc., Company (1 Abb. (U. S.) 388,
398), the learned presiding justice says: “There is no more sacred
right of citizenship than the right to pursue unmolested a lawful
employment in a lawful manner. It is nothing more nor less than the
sacred right of labor.” In Wynehamer _vs._ People, Johnson, J., says:
“That a law which should make it a crime for men either to live in, or
rent or sell their houses,” would violate the constitutional guaranty
of personal liberty. In Bertholf _vs._ O’Reilly (74 N. Y. 509, 515),
Andrews, J., says: That one could “be deprived of his liberty in a
constitutional sense without putting his person in confinement,” and
that a man’s right to liberty included “the right to exercise his
faculties, and to follow a lawful avocation for the support of life.”
But the claim is made that the legislature could pass this act in the
exercise of the police power which every sovereign state possesses.
That power is very broad and comprehensive, and is exercised to promote
the health, comfort, safety and welfare of society. Its exercise in
extreme cases is frequently justified by the maxim _salus populi
suprema lex est_. It is used to regulate the use of property by
enforcing the maxim _sic utere tuo, ut alienum non loedas_. Under it
the conduct of an individual and the use of property may be regulated
so as to interfere, to some extent, with the freedom of the one and the
enjoyment of the other; and in cases of great emergency engendering
overruling necessity, property may be taken or destroyed without
compensation, and without what is commonly called due process of law.
The limit of the power cannot be accurately defined, and the courts
have not been able or willing definitely to circumscribe it. But the
power, however broad and extensive, is not above the Constitution. When
it speaks, its voice must be heeded. It furnishes the supreme law, the
guide for the conduct of legislators, judges and private persons, and
so far as it imposes restraints, the police power must be exercised
in subordination thereto. Judge Cooley, speaking of the regulation by
the legislature under the police power of the conduct of corporations
holding inviolable charters, says: “The limit to the exercise of the
police power in these cases must be this: the regulations must have
reference to the comfort, safety and welfare of society; they must not
be in conflict with any of the provisions of the charter, and they
must not, under pretense of regulation, take from the corporation any
of the essential rights and privileges which the charter confers. In
short, they must be police regulations, in fact, and not amendments
of the charter in curtailment of the corporate franchise.” (Const,
Lim. (4th ed.) 719.) In Potter’s Dwarris on Statutes, 458, it is said
that “the limit to the exercise of the police power can only be this;
the legislation must have reference to the comfort, the safety or the
welfare of society; it must not be in conflict with the provisions of
the Constitution.” In Commonwealth _vs._ Alger (7 Cush. 53, 84), Shaw,
Ch. J., says, that the police power “was vested in the legislature, by
the Constitution, to make, ordain and establish all manner of wholesome
and reasonable laws, statutes and ordinances, either with penalties
or without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the Commonwealth and of the subjects
of the same. It is much easier to perceive and realize the existence
and sources of the power than to mark its limitations or prescribe
limits to its exercise.” In Austin _vs._ Murray (16 Pick. 121, 126),
it is said: “The law will not allow the rights of property to be
invaded under the guise of a police regulation for the promotion of
health, when it is manifest that such is not the object and purpose
of the regulation.” In Watertown _vs._ Mayo (109 Mass. 315, 319),
Colt, J., says: “The law will not allow rights of property to be
invaded under the guise of a police regulation for the preservation
of health or protection against a threatened nuisance; and when it
appears that such is not the real object and purpose of the regulation,
courts will interfere to protect the rights of the citizen.” In the
Slaughter-house cases (16 Wall. 36, 87), Field, J., says: “All sorts
of restrictions and burdens are imposed under the police power, and
when these are not in conflict with any constitutional prohibitions
or fundamental principles, they cannot be successfully assailed in a
judicial tribunal.... But under the pretense of prescribing a police
regulation, the State cannot be permitted to encroach upon any of
the just rights of the citizen which the Constitution intended to
secure against abridgment.” In Coe _vs._ Schultze (47 Barb. 64), a
learned judge speaking of the constitutional limitations upon the
police power says: “I am not willing to concede that the legislature
can constitutionally declare an act or thing to be a common nuisance,
which palpably, according to our present experience or information, is
not and cannot be under any circumstances a common nuisance, by the
common-law definitions or common-law decisions. I am not willing to
conclude that the legislature can constitutionally declare or authorize
any sanitary commission or board to declare the keeping or the use,
in any way, of sugar or vinegar to be a common nuisance, because the
one is sweet and the other sour, or for any other reason. By such an
unlimited power it is easy to see that any citizen might be deprived of
his property without compensation, and without any colorable pretext
that the public good required such deprivation.” (See, also, In the
Matter of Cheesebrough, 78 N. Y. 232.)
These citations are sufficient to show that the police power is not
without limitations, and that in its exercise the legislature must
respect the great fundamental rights guaranteed by the Constitution. If
this were otherwise, the power of the legislature would be practically
without limitation. In the assumed exercise of the police power in the
interest of the health, the welfare or the safety of the public, every
right of the citizen might be invaded and every constitutional barrier
swept away.
Generally it is for the legislature to determine what laws and
regulations are needed to protect the public health and secure the
public comfort and safety, and while its measures are calculated,
intended, convenient and appropriate to accomplish these ends, the
exercise of its discretion is not subject to review by the courts.
But they must have some relation to these ends. Under the mere guise
of police regulations, personal rights and private property cannot be
arbitrarily invaded, and the determination of the legislature is not
final or conclusive. If it passes an act ostensibly for the public
health, and thereby destroys or takes away the property of a citizen,
or interferes with his personal liberty, then it is for the courts
to scrutinize the act and see whether it really relates to and is
convenient and appropriate to promote the public health. It matters
not that the legislature may in the title to the act, or in its body,
declare that it is intended for the improvement of the public health.
Such a declaration does not conclude the courts, and they must yet
determine the fact declared and enforce the supreme law. In Matter
of Ryers (72 N. Y. 1), Folger, J., speaking of the drainage Act then
under consideration, says: “The legislature has done no more than
the Constitution permitted in providing in general terms a way for
the promotion and preservation of the public health. It is still for
the judiciary to see to it that each occasion presents the necessity
for the work, and that the purpose to be reached is public.” In Town
of Lake View _vs._ Rose Hill Co. (70 Ill. 191), the court, speaking
of the police power, says: “As a general proposition, it may be
stated that it is in the province of the lawmaking power to determine
whether the exigencies exist calling into exercise this power. What
are the subjects of its exercise is clearly a judicial question.”
Even the power of taxation, which is one of the broadest possessed by
the legislature, is not without its limitations, and its action in
reference thereto may be scrutinized by the courts; and that which is
done under the guise of taxation may be condemned as sheer spoliation
and confiscation without due process of law. (Weismer _vs._ Village of
Douglas, 64 N. Y. 91; Stuart _vs._ Palmer, 74 id. 183; People _vs._
Equitable Trust Co., 96 id. 387.) The legislature may condemn or
authorize the condemnation of private property for public use, and it
may, in the exercise of its discretion, determine when and upon what
property the power of eminent domain may be exercised; but its exercise
is not beyond the reach of judicial inquiry. Whether or not a use
is a public one, which will justify the exercise of the power, is a
judicial question. It may be difficult sometimes to determine whether
a use is public or private. Although the legislature may declare it to
be public, that does not necessarily determine its character; it must
in fact be public, and if it be not, no legislative fiat can make it
so, and any owner of property attempted to be taken for a use really
private can invoke the aid of the courts to protect his property rights
against invasion. (Rockwell _vs._ Nearing, 35 N. Y. 302; Matter of
Townsend, 39 id. 171; Matter of Deansville Cemetery Association, 66
id. 569; Matter of Eureka Basin Warehouse and Manufacturing Co., 96
id. 42.) The general government is one of limited powers particularly
specified in the Federal Constitution. But in addition to the powers
granted, it is provided in the Constitution that congress shall have
power “to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers.” Under this provision,
congress is not the final judge of what is “necessary and proper,”
but its laws must have a legitimate end in view, must be within the
scope of the Constitution, must be appropriate and plainly adapted
to that end, and not prohibited by, but consistent with, the letter
and spirit of the Constitution; and whether the laws passed under the
implied powers contained in the section cited are of the character
mentioned and thus justified, is always open to judicial inquiry.
(McCulloch _vs._ Maryland, 4 Wheat. 316, 421; Hepburn _vs._ Griswold,
8 Wall. 603; Legal Tender Cases, 12 id. 457; 110 U. S., 421.) If it
were for congress to determine when these implied or incidental powers
should be exercised, its powers would be without any restraint, and
instead of being a body with limited powers, it would, in its own
discretion, have general and unlimited power of legislation. “Whatever
meaning,” says Mr. Madison (1 Ann. of Cong. 1848), “the clause of the
Constitution conferring all necessary and proper means to carry into
effect the enumerated powers may have, none could be admitted that
would give an unlimited discretion to congress.” And in Marbury _vs._
Madison (1 Cranch, 137), Chief Justice Marshall says: “To what purpose
are limitations committed to writing, if those limits may at any time
be passed by those intended to be restrained? The distinction between
a government with limited and unlimited powers is abolished if those
limits do not confine the persons on whom they are imposed.” These
citations are apt to show how the police power may, and how it ought
not to be exercised, and how far its exercise is subject to judicial
inquiry. A law enacted in the exercise of the police power must in fact
be a police law. If it be a law for the promotion of the public health,
it must be a health law, having some relation to the public health.
We will now once more recur to the law under consideration. It does not
deal with tenement-houses as such; it does not regulate the number of
persons who may live in any one of them, or be crowded into one room,
nor does it deal with the mode of their construction for the purpose
of securing the health and safety of their occupants or of the public
generally. It deals mainly with the preparation of tobacco and the
manufacture of cigars, and its purpose obviously was to regulate them.
We must take judicial notice of the nature and qualities of tobacco.
It has been in general use among civilized men for more than two
centuries. It is used in some form by a majority of the men in this
State, by the good and bad, learned and unlearned, the rich and poor.
Its manufacture into cigars is permitted without any hindrance, except
for revenue purposes, in all civilized lands. It has never been said,
so far as we can learn, and it was not affirmed even on the argument
before us, that its preparation and manufacture into cigars were
dangerous to the public health. We are not aware, and are not able to
learn, that tobacco is even injurious to the health of those who deal
in it, or are engaged in its production or manufacture. We certainly
know enough about it to be sure that its manipulation in one room can
produce no harm to the health of the occupants of other rooms in the
same house. It was proved in this case that the odor of the tobacco
did not extend to any of the other rooms of the tenement-house. Mr.
Secretary McCulloch in his late annual report to Congress, in which he
recommends the removal of the internal tax from tobacco that it might
thus be placed upon a footing with other agricultural products, says:
“An article which is so generally used and which adds so much to the
comfort of the large numbers of our population who earn their living
by manual labor, cannot properly be considered a luxury.” To justify
this law it would not be sufficient that the use of tobacco may be
injurious to some persons, or that its manipulation may be injurious
to those who are engaged in its preparation and manufacture; but it
would have to be injurious to the public health. This law was not
intended to protect the health of those engaged in cigarmaking, as they
are allowed to manufacture cigars everywhere except in the forbidden
tenement-houses. It cannot be perceived how the cigarmaker is to be
improved in his health or his morals by forcing him from his home and
its hallowed associations and beneficent influences, to ply his trade
elsewhere. It was not intended to protect the health of that portion of
the public not residing in the forbidden tenement-houses, as cigars are
allowed to be manufactured in private houses, in large factories and
shops in the too crowded cities, and in all other parts of the State.
What possible relation can cigarmaking in any building have to the
health of the general public? Nor was it intended to improve or protect
the health of the occupants of tenement-houses. If there are but three
families in the tenement-house, however numerous and gregarious their
members may be, the manufacture is not forbidden; and it matters not
how large the number of the occupants may be if they are not divided
into more than three families living and cooking independently. If
a store is kept for the sale of cigars on the first floor of one of
these houses, and thus more tobacco is kept there than otherwise would
be, and the baneful influence of tobacco, if any, is thus increased,
that floor, however numerous its occupants, or the occupants of
the house, is exempt from the operation of the act. What possible
relation to the health of the occupants of a large tenement-house could
cigarmaking in one of its remote rooms have? If the legislature had
in mind the protection of the occupants of tenement-houses, why was
the act confined in its operation to the two cities only? It is plain
that this is not a health law, and that it has no relation whatever to
the public health. Under the guise of promoting the public health the
legislature might as well have banished cigarmaking from all the cities
of the State, or confined it to a single city or town, or have placed
under a similar ban the trade of a baker, of a tailor, of a shoemaker,
of a woodcarver, or of any other of the innocuous trades carried on by
artisans in their own homes. The power would have been the same, and
its exercise, so far as it concerns fundamental, constitutional rights,
could have been justified by the same arguments. Such legislation may
invade one class of rights to-day and another to-morrow, and if it can
be sanctioned under the Constitution, while far removed in time we
will not be far away in practical statesmanship from those ages when
governmental prefects supervised the building of houses, the rearing of
cattle, the sowing of seed and the reaping of grain, and governmental
ordinances regulated the movements and labor of artisans, the rate of
wages, the price of food, the diet and clothing of the people, and a
large range of other affairs long since in all civilized lands regarded
as outside of governmental functions. Such governmental interferences
disturb the normal adjustments of the social fabric, and usually
derange the delicate and complicated machinery of industry and cause a
score of ills while attempting the removal of one.
When a health law is challenged in the courts as unconstitutional on
the ground that it arbitrarily interferes with personal liberty and
private property without due process of law, the courts must be able to
see that it has at least in fact some relation to the public health,
that the public health is the end actually aimed at, and that it is
appropriate and adapted to that end. This we have not been able to see
in this law, and we must, therefore, pronounce it unconstitutional and
void. In reaching this conclusion we have not been unmindful that the
power which courts possess to condemn legislative acts which are in
conflict with the supreme law should be exercised with great caution
and even with reluctance. But as said by Chancellor Kent (1 Com.
450): “It is only by the free exercise of this power that courts of
justice are enabled to repel assaults and to protect every part of the
government and every member of the community from undue and destructive
innovations upon their charter rights.”
The order should be affirmed.
All concur.
Order affirmed.
APPENDIX V
PURE FOOD BILL
(In the Senate of the United States. January 21, 1904.)
(_Read twice and referred to the Committee on Manufactures._)
AN ACT FOR PREVENTING THE ADULTERATION OR MISBRANDING OF FOODS OR
DRUGS, AND FOR REGULATING TRAFFIC THEREIN, AND FOR ALL OTHER PURPOSES.
[Sidenote: _Changes Bureau of Chemistry to Bureau of Chemistry and
Foods, Charged With Inspection of Food and Drug Products._]
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That for the purpose of
protecting the commerce in food products and drugs between the several
states and in the District of Columbia and the territories of the
United States and with foreign countries the Secretary of Agriculture
shall organize the bureau of chemistry of the Department of Agriculture
into a bureau of chemistry and foods, which shall have the direction
of the chemical work of the present bureau of chemistry and of the
chemical work of the other executive departments whose respective heads
may apply to the Secretary of Agriculture for such collaboration, and
which shall also be charged with the inspection of food and drug
products, as hereinafter provided in this act. The Secretary of
Agriculture shall make necessary rules and regulations for carrying
out the provisions of this act, under which the director of the bureau
of chemistry and foods shall procure from time to time, or cause
to be procured, and analyzed, or cause to be analyzed or examined,
chemically, microscopically, or otherwise, samples of foods and drugs
offered for sale in original unbroken packages in the District of
Columbia, in any territory, or in any state other than that in which
they shall have been respectively manufactured or produced, or from
a foreign country, or intended for export to a foreign country. The
Secretary of Agriculture is hereby authorized to employ such chemists,
inspectors, clerks, laborers, and other employees as may be necessary
to carry out the provisions of this act and to make such publication of
the results of the examinations and analyses as he deems proper.
[Sidenote: _To Procure and Analyze Samples of Foods and Drugs._]
[Sidenote: _Prohibits Importation of Food or Drugs Adulterated or
Misbranded._]
Sec. 2. That the introduction into any state or territory or the
District of Columbia from any other state or territory or the District
of Columbia, or from any foreign country, or shipment to any foreign
country of any article of food or drugs which is adulterated or
misbranded, within the meaning of this act, is hereby prohibited;
and any person who shall ship or deliver for shipment from any state
or territory or the District of Columbia to any other state or
territory or the District of Columbia, or to a foreign country, or who
shall receive in any state or territory or the District of Columbia
from any other state or territory or the District of Columbia, or
foreign country, or who, having received, shall deliver, in original
unbroken packages, for pay or otherwise, or offer to deliver to any
other person, any such article so adulterated or misbranded within
the meaning of this act, or any person who shall sell or offer for
sale in the District of Columbia or the territories of the United
States such adulterated, mixed, misbranded, or imitated foods or
drugs, or export or offer to export the same to any foreign country,
shall be guilty of a misdemeanor, and for such offense be fined not
exceeding two hundred dollars for the first offense and for each
subsequent offense not exceeding three hundred dollars or be imprisoned
not exceeding one year, or both, in the discretion of the court:
_Provided, nevertheless_, That no article shall be deemed misbranded
or adulterated within the provisions of this act when intended for
export to any foreign country and prepared or packed according to the
specifications or directions of the foreign purchaser when no substance
is used in the preparation or packing thereof in conflict with the laws
of the foreign country to which said article is intended to be shipped;
but if said article shall be in fact sold or offered for sale for
domestic use or consumption, then this proviso shall not exempt said
article from the operation of all the other provisions of this act.
[Sidenote: _Penalty for Dealer._]
[Sidenote: _Prosecution for Violation._]
Sec. 3. That the director of the bureau of chemistry and foods shall
make, or cause to be made, under rules and regulations to be prescribed
by the Secretary of Agriculture, examinations of specimens of foods and
drugs offered for sale in original unbroken packages in the District
of Columbia, in any territory or in any state other than that in which
they shall have been respectively manufactured or produced, or from any
foreign country, or intended for shipment to any foreign country, which
may be collected from time to time in various parts of the country. If
it shall appear from any such examination that any of the provisions of
this act have been violated, the Secretary of Agriculture shall at once
certify the facts to the proper United States district attorney, with a
copy of the results of the analysis, duly authenticated by the analyst
under oath.
Sec. 4. That it shall be the duty of every district attorney to whom
the Secretary of Agriculture shall report any violation of this act to
cause proceedings to be commenced and prosecuted without delay for the
fines and penalties in such case provided.
DEFINITIONS
[Sidenote: _Definitions._]
Sec. 5. That the term “drug,” as used in this act, shall include all
medicines and preparations recognized in the United States Pharmacopœia
for internal or external use. The term “food,” as used herein, shall
include all articles used for food, drink, confectionery, or condiment
by man or domestic animals, whether simple, mixed, or compound.
The term “misbranded,” as used herein, shall apply to all drugs, or
articles of food, or articles which enter into the composition of food,
the package or label of which shall bear any statement regarding the
ingredients or substances contained in such article, which statement
shall be false or misleading in any particular, and to any food or drug
product which is falsely branded as to the state, territory, or country
in which it is manufactured or produced.
ADULTERATIONS
Sec. 6. That for the purposes of this act an article shall be deemed to
be adulterated--
In case of drugs:
[Sidenote: _Adulterations in Drugs._]
First. If when a drug is sold under or by a name recognized in the
United States Pharmacopœia, it differs from the standard of strength,
quality, or purity, as determined by the test laid down in the United
States Pharmacopœia official at the time of the investigation.
Second. If its strength or purity fall below the professed standard
under which it is sold.
Third. If it be an imitation of or offered for sale under the name of
another article.
In the case of confectionery:
[Sidenote: _Adulterations in Confectionery._]
If it contain terra alba, barytes, talc, chrome yellow, or other
mineral substances or poisonous colors or flavors, or other ingredients
deleterious or detrimental to health.
In the case of food:
[Sidenote: _Adulterations in Foods._]
First. If any substance or substances has or have been mixed and packed
with it so as to reduce or lower so as to thereby injuriously affect
its quality or strength.
Second. If any substance or substances has or have been substituted
wholly or in part for the article.
Third. If any valuable constituent of the article has been wholly or in
part abstracted.
Fourth. If it be an imitation of or offered for sale under the
distinctive name of another article.
Fifth. If it be mixed, colored, powdered, or stained in a manner
whereby damage or inferiority is concealed.
Sixth. If it contain any added poisonous ingredient which may render
such article injurious to health.
Seventh. If it be labeled or branded so as to deceive or mislead the
purchaser, or purport to be a foreign product when not so.
Eighth. If it consists in whole or in part of a filthy, decomposed,
or putrid animal or vegetable substance, or any portion of an animal
unfit for food, whether manufactured or not, or if it is the product of
a diseased animal, or one that has died otherwise than by slaughter:
_Provided_, That an article of food which does not contain any added
poisonous or deleterious ingredients shall not be deemed to be
adulterated in the following cases:
[Sidenote: _Articles Labeled, Branded or Tagged._]
[Sidenote: _Guaranty from Manufacturer._]
First. In the case of mixtures or compounds which may be now or from
time to time hereafter known as articles of food, under their own
distinctive names, and not included in definition fourth of this
section. Second. In the articles labeled, branded, or tagged so as
to plainly indicate that they are mixtures, compounds, combinations,
imitations, or blends: Provided, That the same shall be labeled,
branded, or tagged so as to show the character and constituents
thereof: _And provided further_, That nothing in this act shall be
construed as requiring or compelling proprietors or manufacturers of
proprietary foods which contain no unwholesome ingredient to disclose
their trade formulas, except in so far as the provisions of this act
may require to secure freedom from adulteration or imitation: _Provided
further_, That no dealer shall be convicted under the provisions of
this act when he is able to prove a written guaranty of purity, in
a form approved by the Secretary of Agriculture as published in his
rules and regulations, signed by the manufacturer or the party or
parties from whom he purchased said articles: _Provided also_, That
said guarantor or guarantors reside within the jurisdiction of the
United States. Said guaranty shall contain the full name and address
of the party or parties making the sale to the dealer, and said party
or parties shall be amenable to the prosecutions, fines, and other
penalties which would attach in due course to the dealer under the
provisions of this act: _Provided_, That when in the preparation
of food products for shipment they are preserved by an external
application applied in such manner that the preservative is necessarily
removed mechanically or by maceration in water or otherwise, the
provisions of this act shall be construed as applying only when said
products are ready for consumption.
[Sidenote: _Preservatives._]
[Sidenote: _Standards of Food Products._]
Sec. 7. That it shall be the duty of the Secretary of Agriculture to
fix standards of food products when advisable for the guidance of
the officials charged with the administration of food laws and for
the information of the courts, and to determine the wholesomeness or
unwholesomeness of preservatives and other substances which are or may
be added to foods, and to aid him in reaching just decisions in such
matters he is authorized to call upon the committee on food standards
of the Association of Official Agricultural Chemists, and such other
experts as he may deem necessary.
[Sidenote: _Manufacturer, Producer or Shipper Must Sell Samples._]
Sec. 8. That every person who manufactures or produces for shipment
and delivers for transportation within the District of Columbia or any
territory, or who manufactures or produces for shipment or delivers for
transportation from any state, territory or the District of Columbia,
to any other state, territory, or the District of Columbia, or to any
foreign country, any drug or article of food, and every person who
exposes for sale or delivers to a purchaser in the District of Columbia
or any territory any drug or article of food manufactured or produced
within said District of Columbia or any territory, or who exposes for
sale or delivers for shipment any drug or article of food received from
a state, territory, or the District of Columbia other than the state,
territory, or the District of Columbia in which he exposes for sale or
delivers such drug or article of food, or from any foreign country,
shall furnish within business hours and upon tender and full payment
of the selling price a sample of such drugs or article of food to any
person duly authorized by the Secretary of Agriculture to receive the
same, and who shall apply to such manufacturer, producer, or vender, or
person delivering to a purchaser, such drug or article of food for such
sample for such use in sufficient quantity for the analysis of any such
article or articles in his possession.
[Sidenote: _Penalty for Refusal to Sell Samples._]
Sec. 9. That any manufacturer, producer, or dealer who refuses to
comply, upon demand, with the requirements of section eight of this act
shall be guilty of a misdemeanor, and upon conviction shall be fined
not exceeding one hundred dollars, or imprisonment not exceeding one
hundred days, or both. And any person found guilty of manufacturing or
offering for sale, or selling, an adulterated, impure, or misbranded
article of food or drug in violation of the provisions of this act
shall be adjudged to pay, in addition to the penalties hereinbefore
provided for, all the necessary costs and expenses incurred in
inspecting and analyzing such adulterated articles which said person
may have been found guilty of manufacturing, selling or offering for
sale.
[Sidenote: _Act Does Not Interfere With Commerce Wholly Internal in any
State._]
Sec. 10. That this act shall not be construed to interfere with
commerce wholly internal in any state, nor with the exercise of
their police powers by the several states; but foods and drugs fully
complying with all the provisions of this act shall not be interfered
with by the authorities of the several states when transported from one
state to another so long as they remain in original unbroken packages,
except as may be otherwise provided by statutes of the United States.
[Sidenote: _Condemnation of Goods._]
Sec. 11. That any article of food or drug that is adulterated or
misbranded within the meaning of this Act, and is transported or being
transported from one State to another for sale, or if it be sold or
offered for sale in the District of Columbia and the territories of the
United States, or if it be imported from a foreign country for sale,
or if intended for export to a foreign country, shall be liable to be
proceeded against in any district court of the United States, within
the district where the same is found and seized for confiscation, by
a process of libel for condemnation. And if such article is condemned
as being adulterated or misbranded, within the meaning of this act,
the same shall be disposed of as the said court may direct, and the
proceeds thereof, if sold, less the legal costs and charges, shall
be paid into the Treasury of the United States, but such goods shall
not be sold in any state contrary to the laws of that state. The
proceedings of such libel cases shall conform as near as may be to
proceedings in admiralty, except that either party may demand trial by
jury of any issue of fact joined in such case; and all such proceedings
shall be at the suit of and in the name of the United States.
[Sidenote: _Authority to Investigate Original Packages by Permission of
Secretary of Treasury._]
Sec. 12. That the Secretary of Agriculture is authorized to investigate
the character and extent of the adulteration of foods, drugs and
liquors, and whenever he has reason to believe that articles are being
imported from foreign countries which by reason of such adulteration
are dangerous to the health of the people of the United States, or
of kinds which are forbidden entry into or forbidden to be sold or
restricted in sale in the countries in which they are made or from
which they are exported, or which shall be falsely labeled in any
respect either by the omission of the name of any added ingredient or
otherwise, or in regard to the place of manufacture or the contents of
the package, shall make a request upon the Secretary of the Treasury
for samples from original packages of such articles for inspection and
analysis; and the Secretary of the Treasury is hereby authorized to
open such original packages and deliver specimens to the Secretary of
Agriculture for the purpose mentioned, giving due notice to the owner
or consignee of such articles, who may be present and have the right to
introduce testimony; and the Secretary of the Treasury shall refuse
delivery to the consignee of any of such goods which the Secretary of
Agriculture reports to him have been inspected and analyzed and found
to be dangerous to health, or of kinds which are forbidden entry into
or forbidden to be sold or restricted in sale in the countries in
which they are made or from which they are exported, or which shall
be falsely labeled in any respect either by the omission of the name
of any added ingredient or otherwise, or in regard to the place of
manufacture or the contents of the package.
[Sidenote: _Delivery of Goods to Consignee May Be Refused by Secretary
of the Treasury._]
Sec. 13. This act shall be in force and effect from and after the first
day of September, Anno Domini nineteen hundred and four.
Passed the House of Representatives January 19, 1904.
Attest: A. MCDOWELL, _Clerk_.
This bill failed to pass the Senate both in 1904 and 1905.
INDEX
Addams, Jane, VIII, 40.
Adulteration of foods, 210-211, 222, 225, 230, 325 (Appendix V).
Alabama, child labor in, 35;
new statute in, 37;
nightwork in, 78;
illiterate children in, 86, 89;
age limit in, 91;
no factory inspectors in, 159.
Arkansas, 89.
Atkins vs. the State, 128.
Attendance agents, women as, 177.
Australian Federation, 198.
Boston, 8, 12, 14, 185-186.
Buffalo, 12, 14.
Bureau of Charities, Chicago, 40.
Bureau of Labor (U. S.), 99, 105.
California, 215, 81-89.
Cambridge, Mass., 23.
Canton Cotton Mill vs. Edwards, 256.
Census (U. S.), 70, 73, 81, 100, 197.
Chicago, V, VI, 21, 32, 39-40, 50, 58, 60, 72, 106, 142-144,
179-180,
184, 215, 217, 219, 254.
Children’s Protective Alliance in New Jersey, 54.
Christmas cruelties, 20, 30-33.
Colorado, 106, 134, 148, 152, 161-162, 169, 190-191, 193-194,
198-199.
Commission for Children (U. S.), 99-104.
Committee on Relations of Employer and Employee, 79-80.
Compulsory Education, in Alton, Ill., 51;
in Chicago, 58, 60, 184;
in New York and Pennsylvania, 73;
in Massachusetts, 86;
states having none, 89-90;
relation to child labor law, 96, 238.
Congestion of population, 109.
Constitution of the United States, 143, 146, 147-148, 152-153, 158,
163, 280 (Appendix III).
Consumers’ League seeks leisure for clerks, 106;
advocates early closing, 115;
inspector for, 120;
improvement achieved by, 126;
intervention by, 136, 202, 221, 243.
Delaware, child labor law, 80;
nightwork, 91;
nine hours day, 134.
Denver, women vote for all officials, 186-187, 190;
county judge of, 192;
voting mothers of, 193-194.
Department of Agriculture (U. S.), 99, 103.
Department of Education, 99.
Dependent families, 41, 49-50, 52, 249;
girl, 75, 110;
fathers, 13;
orphans, 76;
widows, 63, 66.
Disabled fathers, 13, 35, 39;
parent, 35, 39, 246;
relative, 35-39.
Divorce Reform League, 206.
Eliot, President Charles W., of Harvard University, 23.
Employers’ Liability, 102, 256 (Appendix I).
Factory acts, 89.
Factory inspector, VII, 6;
none in several states, 36-38, 40;
varying efficiency of, 56, 60, 64, 89, 97, 139;
women as, 177, 219, 225-226, 237, 239, 244, 246.
Florida, 88.
French Canadian children, 85.
General Federation of Women’s Clubs, 106.
Georgia, no child labor law, 33-34, 38;
Northern corporations in, 61;
eleven hours day, 63;
children in manufacture, 70;
rank in scale of states, 86;
illiteracy in, 82-89; age limit, 91;
competition with New England, 107, 134-135, 166;
women excluded from public life, 193;
supreme court decision in child labor case, 256.
Grover Cleveland, 106.
Hamilton Manufacturing Co. (120 Mass., 283), 154, 136.
Helena, Montana, 219-220.
Holden vs. Hardy, 128, 137, 145, 158, 160-161, 164, 233, 254, 280
(Appendix III).
Hull-House, VII, VIII, 40.
Idaho, women vote in, 198.
Illinois, VII;
child labor law of 1903, 30;
end of working day, 32;
age limit, 33;
children in mines, 38;
laws of 1891, 1893, 1897 and 1903, 39;
scholarships, 41;
Alton, 43;
children imported for work, 47;
ideals of immigrants, 58-61;
nightwork
prohibited, 63;
enforcement of child labor laws, 77;
eight hours day, 80;
position in scale of states, 85-88;
Supreme Court, 128;
working week 48 hours, 134;
decision in case Ritchie vs. the People, 139, 147, 142-144;
strikes in, 145, 158-160, 155-156, 158-159, 160-162;
girl in trade union, 181, 200, 219;
Ritchie vs. the People, 259.
Illiterate children, 4, 11, 36, 47, 54, 59;
in Pennsylvania, 73;
imported by relatives, 75;
in Chicago, 77;
in census of 1900, 81-89, 100.
Immigrants, 6, 11;
false ideals of parents, 58, 61;
Welsh miner’s experience, 69;
Russian girl in sweatshop, 75;
import illiterate children, 75;
women as inspectors of, 177;
in colonies, 183;
as purchasers, 214-215.
In re Jacobs, 230-231, 233, 238, 240-241, 244, 246-247, 253-255,
306 (Appendix IV).
Indiana, 85.
Infant mortality, 4, 100-101.
Institutions for children, 7;
records of, 17;
erroneously called private, 64;
dependents and delinquents together, 102;
competition with manufacturers in sewing trades, 124;
the sweating-system in, 130;
so-called reformatory, 205.
Inter-State Commerce Commission, 67.
Iowa, 93.
Italian, child immigrants, 11;
importation of children, 76;
in Massachusetts, 86;
girl in Chicago school, 180;
as purchasers, 214;
olive oil, 214, 216;
sewing in tenement, 237.
Juvenile court, observations regarding messenger service, 17;
insufficient number of, 102, 189.
Kansas, 39, 40, 41.
Kentucky, 37.
Label of trade union, cigarmakers, 126;
of cracker-bakers, 182;
tailors, 220, 240-243.
Licenses for tenement work, 8, 237-238.
Lochner _vs._ New York, 128, 159, 233, 254-255.
Louisiana, child labor in, 36;
age limit, 36;
rank in scale of states, 89, 91;
child labor bill introduced, 93.
London School Board, 176, 185, 188.
Maine, 91, 103.
Maryland, 88.
Massachusetts, ethical standards, 8, 61, 67;
rank in scale of states, 70;
child labor law age limit, 78;
hours of labor, 80;
illiterate children, 82-89;
needle trades in, 119;
competition with Georgia, 135;
powers of legislature, 136, 149;
protection of women engaged in commerce, 137;
strikes in, 145;
constitution of, 149-150, 155, 164;
educational qualification for voting, 173.
Mercantile inspection, 27, 169, 201-202.
Michigan, 68, 82-85.
Mississippi, 89, 134.
Missouri, 36, 39, 161.
Montana, 134.
Municipal milk supply, 224.
National Child Labor Committee, 106.
National Congress of Mothers, 106.
National Consumers’ League, recognition of clerks’ right to leisure,
106;
advocates Saturday half-holiday, 115;
inspector for, 120;
achievement of, 126;
demands leisure for young workers, 136;
changing industrial conditions affecting working women and
children, 202;
endeavor to form body of organized purchasers, 221;
label on women’s and children’s white muslin underwear, 243.
National Educational Association, 106.
Nebraska, 85, 91, 148, 152, 160.
Needle-trades, 8, 130, 240, 217-218, 231, 237.
Nevada, 81.
New Hampshire, 91, 82-84.
New Jersey, 37;
glass-bottle industry in, 52;
nightwork in, 53;
imported boys for glass works, 54;
thrift urged for children, 63;
children in manufacture, 70;
illiterate children, 82-88;
rank in scale of states, 82;
hours of labor, 134;
repeal of Fifty-Five Hours law, 154, 170.
New York, VII;
infant mortality in, 4;
begging infants in, 5;
kindergarten children working in tenements, 6;
subsidized institutions, 7;
child labor law of 1903, 11;
Child Labor Committee, 12;
penal code affecting telegraph boys, 18;
corporations having branches in the South, 61;
needle-trades subsidized, 64;
comparison with children in manufacture in Pennsylvania, 70-73;
illiterate children in, 82-88;
sweating system, 111;
Court of Appeals decision People _vs._ Orange Co.
Road Construction Co., 128;
hours of labor of children, 143, 137-138, 144, 160, 169;
insufficient schools, 187-188;
Foundling Asylum, 194;
clerks insufficiently protected, 200-202;
consumptive tenement-workers, 213, 215, 231, 233, 237, 244-245,
253;
in re Jacobs, 306 (Appendix IV).
New Zealand, 196-198.
Night inspections, 44, 96.
Night work, of newsboys, 15;
of telegraph and messenger boys, 20;
of children in retail trade, 30-33;
in manufacture, 34-36 and 45 _et seq._;
in glass works, 53 _et seq._, 71, 73;
in Pennsylvania and Rhode Island, 78;
in Illinois, 139, 143-144;
in Alabama, 169;
in New Jersey, 170.
North Carolina, child labor law of 1903, 35-37;
children in coal mines, 39;
in manufacture, 70;
rank in the scale of states, 82-89;
illiterate children, 82-89;
age limit, 91;
age of consent, 194.
North Dakota, 91.
Nurses’ Settlement, VII.
Ohio, 25, 85, 82-89.
Oregon, 85.
Orphans in the glass industry, 43;
maintenance of, 66;
a social and industrial phenomenon, 67;
imported to work, 76;
need of a Commission for Children, 100-102.
Parasite trades, 64-65.
Pauper, 49, 50, 52, 217, 253.
Pennsylvania, 56, 63;
children in manufacture, 70-78;
illiterate children, 80-89;
miners in, 159.
Pensions, 48, 101.
People _vs._ the Orange Co. Road Construction Co., 128.
Police matrons, women as, 177.
Probation officers, women as, 177.
Portuguese children, 86.
Poverty, 42, 50 _et seq._, 54, 58, 98, 220, 253.
Public Education Association of New York City, 173.
Pure Food bill, 325 (Appendix V.).
Registration of births, 100.
Retail Dealers’ Association of New York City, 169, 201.
Ritchie _vs._ the People, 128, 143, 145, 147, 155, 254-255, 259
(Appendix II.).
Rhode Island, 70, 78, 91.
Rochester, N. Y., municipal milk supply, 224.
Russian children, 11, 74, 76, 86.
Sanitary inspectors, women as, 177.
Scholarships for working children, 40-42, 50, 52.
School nurses, 177, 188.
South Australia, women vote in, 198.
South Carolina, 70, 87, 89;
age of consent in, 194, 216.
Speed, 43, 121-124, 159.
Strikes, 144, 168, 171, 182.
Sweating system, 159, 166, 210, 212, 218, 229, 231, 235, 240, 242,
250-251.
Syrian children, 186.
Texas, 36-37.
Thrift, 60, 63.
Trade agreements, 114, 127, 132, 134, 163, 165-167.
Trade unions, 53, 55, 90, 117, 126, 133, 165-167, 181, 198, 201,
216,
220-221, 238, 240, 242-245.
Traveling libraries in Wyoming, 197.
United States, 8, 33, 46, 60, 68, 186, 215, 253.
United States Census, 70, 81-85, 197.
United States Congress, 132, 206, 325 (Appendix V).
United States Commission for Children, 99-103.
United States Fish Commission, 101-102, 129-130.
United States Supreme Court, 106, 127-128, 132, 137, 141, 145, 148,
150-152, 155-157, 159-164, 167, 233-234, 254, 280 (Appendix
III).
Utah, 85, 146, 149-152, 154, 157, 161, 164, 198.
Vermont, 134.
Virginia, 35, 37, 82-85, 89, 91.
Washington, 85, 160-161.
West Virginia, 36, 88, 91.
Widows, 13, 35, 63, 66, 243, 248.
Wisconsin, 27, 70.
Women, as attendance agents, probation officers, police matrons,
176;
as inspectors of immigrants, 177;
as sanitary inspectors, tenement inspectors, 177;
as army nurses and school nurses, 177.
Women’s Trade Union League, 198.
Wyoming, 196-198.
THE CITIZEN’S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY
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of the School of Economics and Political Science: Professor of
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=Monopolies and Trusts.= By RICHARD T. ELY, PH.D., LL.D.
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“By all odds the best written of Professor Ely’s work.”--PROFESSOR
SIMON N. PATTEN, University of Pennsylvania.
=Outlines of Economics.= By RICHARD T. ELY, PH.D., LL.D., author of
“Monopolies and Trusts,” etc.
=The Economics of Distribution.= By JOHN A. HOBSON, author of “The
Evolution of Modern Capitalism,” etc.
=World Politics.= By PAUL S. REINSCH, PH.D., LL.B., Professor of
Political Science, University of Wisconsin.
=Economic Crises.= By EDWARD D. JONES, PH.D., Junior Professor of
Commerce and Industry, University of Michigan.
=Government in Switzerland.= By JOHN MARTIN VINCENT, PH.D., Associate
Professor of History, Johns Hopkins University.
=Political Parties In the United States, 1846-1861.= By JESSE MACY,
LL.D., Professor of Political Science in Iowa College.
=Essays on the Monetary History of the United States.= By CHARLES J.
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=Democracy and Social Ethics.= By JANE ADDAMS, head of “Hull House,”
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Associate Editor of “Engineering News.”
=American Municipal Progress.= By CHARLES ZUEBLIN, B.D., Associate
Professor of Sociology in the University of Chicago.
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Irrigation Investigations, Department of Agriculture.
=Railway Legislation in the United States.= By BALTHASAR H. MEYER,
PH.D., Professor of Political Economy, Univ. of Wisconsin.
=Studies in the Evolution of Industrial Society.= By RICHARD T. ELY,
PH.D., LL.D., author of “Monopolies and Trusts,” etc.
=The American City: A Problem in Democracy.= By DELOS F. WILCOX,
PH.D., author of “A Study of City Government.”
=Money: A Study of the Theory of the Medium of Exchange.= By DAVID
KINLEY, PH.D., Professor of Economics and Dean of the College of
Literature and Arts in the University of Illinois.
=The Foundations of Sociology.= By EDWARD ALSWORTH ROSS, PH.D.,
author of “Social Control,” etc.
=The Elements of Sociology.= By FRANK W. BLACKMAR, PH.D., Professor
of Sociology and Economics in the University of Kansas.
=Colonial Administration.= By PAUL S. REINSCH, PH.D., LL.B., author
of “Colonial Government,” “World Politics,” etc.
=An Introduction to the Study of Agricultural Economics.= By HENRY C.
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the University of Wisconsin.
=Some Ethical Gains through Legislation.= By FLORENCE KELLEY,
Secretary of the National Consumers’ League, New York.
=SOME ETHICAL GAINS THROUGH LEGISLATION.= By FLORENCE KELLEY,
Secretary of the National Consumers’ League, New York.
It is proposed to discuss in each of the four divisions of this
book the gain arising from the legislation already achieved in the
direction of recognizing and establishing the particular right
named in the title; and also the gain remaining to be achieved--our
American legislation being perhaps distinguished chiefly by its lack
of uniformity. The main divisions of the book will be: (1) The Right
to Childhood, (2) The Right to Leisure, (3) The Purchaser’s Right to
Knowledge. (4) The Right of Women to Vote.
IN PREPARATION FOR EARLY ISSUE
=NEWER IDEALS OF PEACE.= By JANE ADDAMS, of Hull House, Chicago,
author of “Democracy and Social Ethics.”
Miss Jane Addams has done a great work at Hull House; but her interests
and her influence extend beyond the bounds of that model social
settlement. The problems of democracy and of society at large have
engaged her attention, and have brought from her essays, lectures,
and other works in which readers and hearers have found sound ideas,
wise suggestions, and stimulating views--all set forth with unfailing
adherence to the highest ideals. The present volume gives expression to
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=CUSTOM AND COMPETITION.= By RICHARD T. ELY, PH.D., LL.D., author of
“Outlines of Economics,” “Monopolies and Trusts,” etc.
=BRITISH CITIES AND THEIR PROBLEMS.= By MILO ROY MALTBIE, PH.D.
=INTRODUCTION TO SOCIAL THEORY.= By GEORGE E. VINCENT, PH.D., and
RALPH G. KIMBLE, PH.D.
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Transcriber’s Notes
Obvious punctuation errors and omissions have been corrected silently.
Page numbers in the Index referring to the preface were incorrect in the
original and have been corrected.
Page 94: “is able to real fluently” changed to “is able to read
fluently”
Page 146: “to rehabiliate” changed to “to rehabilitate”
Page 156: “the factories and wrokshops” changed to “the factories and
workshops”
Page 184: “pressure of businss” changed to “pressure of business”
Page 225: “the familar Italian label” changed to “the familiar Italian
label”
Page 257: “and guarding aginst” changed to “and guarding against”
Page 260: “factory or workship” changed to “factory or workshop”
Page 318: “leigslature has done” changed to “legislature has done”
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