Democracy and the Laboring Man

THE unexpected weakness of democratic government is its belief in the efficiency of law-making. It seems possessed with the idea that statutes can amend both nature and human nature. The state legislatures even more than Congress have erred in this particular, and the error has not been confined, or mainly confined, to either political party.

There is no class in the community so well organized, politically speaking, as that of industrial labor ; that is, there is no large body of voters so ready to demand and so able to effect legislation. As a consequence, no other field of our experimenting affords such interest to the student of society. Quite singularly here have we got down to first principles ; and those basic propositions which usually appear as mere generalities in the bills of rights of the several state constitutions or in the first general set of amendments to the national Constitution, or even those of the Declaration of Independence itself, are now actually discussed in our courts as they are called upon to test statutes which seek to control the whole of our citizens for the well-being of a part. Through our earnest desire to ameliorate the condition of the handicraftsman, we are in danger of reviving mediæval restrictions, or of refurbishing musty contrivances of old guilds or devices of feudal lords, to suit the immediate purpose of the more thoughtless leaders of the masses.

It results from the_ essential, fundamental nature of this movement that no other branch of our law-making has been so much questioned upon constitutional grounds. The growth of constitutional law in the state and federal courts of this country in the past decade has probably equaled that of the entire century preceding. Not only that, but the courts have had to discuss first principles, which had hardly been thought of since they lay in the minds of Hamilton and Jefferson, Marshall and Bushrod Washington, at the period when our constitutions were adopted. Our legislatures are somewhat impatient of experience, particularly of the experience of other nations or of older times, — the more that they all have big brothers in the shape of their state supreme courts to fall back upon when they err. As a consequence, the courts have had to do an amount of nullifying work not contemplated by the makers of our Constitution. If this is disagreeable to the men who pass the laws, it is certainly more disagreeable to the judges. Worse than this, large numbers of our people, and notably those who represent the labor interests, are showing signs of impatience, and complaining that the courts are hostile to them.

The figures that follow must be taken as approximate, but a somewhat careful investigation of our legislation has shown that at least 1639 laws affecting labor interests have been passed in the States and Territories during the past ten years. As many of these statutes are several pages long in mere bulk, the legislation is not inconsiderable. In fact, however, it is confined to a small number of principles ; that is, to efforts in a few particular directions to regulate human relations, and in still fewer to punish interference with them. But of the statutes attempting to embody these principles in law, a large proportion have been held unconstitutional in some of the States, while of the principles themselves a greater proportion have met this objection.

The broad difficulty with this sort of legislation which has compelled the courts to reject it is a curious one, and may come with something of surprise to those who have not studied it. It is that these statutes have been restrictive of liberty ; that is, of private liberty, of the right of a free citizen to use his own property and his own personal powers in such way as he will, if so be that he do not injure others, and to be protected by the state in so doing. It should surprise us now, and it would have surprised our forefathers very much, to learn that this proves to be the direction in which our legislatures most often err. But there is no doubt that democracies in other nations than our own, when suddenly entrusted with sovereign powers, betray a distinct inclination to tyrannize ; of course, as they suppose, for the general good.

There is no department in which the science of legislation is progressive today, in which new laws are being formulated and new principles recognized or enacted into law, except the one that in a general way we may term “ sociology ; ” the department which governs the social relations and provides for the material well-being of the masses of the people. Therefore, it should not discourage us to learn that of the 1639 laws above mentioned as having been passed in the last ten years, 114 specific statutes have been declared unconstitutional; while of the forty-three lines of action in which legislation has been essayed, the constitutionality of no less than twenty-three is, speaking mildly, in doubt.

It is the purpose of this article to study the lines upon which the state has thus far intervened in the labor question ; which means, to sketch those lines in which legislation has been tried and has succeeded, or has been nullified by the courts. At first sight, the lines of such interference by law do not appear very strange, nor the statutes themselves especially subversive. The largest class of these statutes is made up of the detailed laws for regulating the sanitary condition of factories, the constitutionality of which was established in England, though against great opposition, some sixty years ago, and, in the case of large factories, has never been questioned in this country. It includes the immense number of statutory regulations aimed at the preservation of the health or morals of factory employees. Of such statutes there have been enacted at least a thousand octavo pages in bulk, throughout the country, in the last ten years. They exist in all States except a few in the South and West, where there are practically no factories, and, curiously enough, New Hampshire ; and they comprise not fewer than 146 chapters of legislation. There has been no decision holding any one of these unconstitutional; but in the case of the regulation of mines, about which laws are almost equally numerous (sixty-five chapters of statutes in thirtythree States), a recent Pennsylvania statute, which provided for the enforced employment of a state inspector, not chosen by the mine-owner, and then made the latter liable to his operatives for damages due to the inspector’s negligence, has been recently declared unconstitutional by a lower state court. The most important line in which the aid of legislation has been sought by the labor interests is that of enforced restriction by the state of hours of labor. There has been so much loose discussion of eight or nine hour laws, for the last few years, that the public have possibly been led into a delusion as to the position of free countries on this question. It seems to be commonly supposed that laws making it criminal or penal to employ the labor of male citizens of full age more than a certain fixed period per day have been usual in countries enjoying constitutional liberty ; whereas the exact contrary is the case. An autocratic government, like that of the German emperor, may doubtless do what it likes ; but, with the possible exception of New Zealand, where a policy nearly approaching to state socialism has been adopted by popular majorities, no English-speaking state has yet submitted itself to laws whereby the liberty of a freeman of full age to work as long as he chooses has been thus curtailed ; and in our country, as we shall see, such laws, when attempted, have always hitherto been held unconstitutional. The misconception has arisen from the fact that the constitutionality of laws limiting the labor of women and minor children, who are in theory favored by the special protection of the state, was long ago sustained in England, and in some of the United States. Such laws, applying mainly to labor in factories and workshops, have existed in both countries for forty or fifty years, and have doubtless had the indirect effect of limiting male laborers of full age in factories to the same working-day hours as women; the reason being that the bulk of factory labor is that of women and children, and that it is not economical — often it is impossible — to employ the small number of adult males after the other hands have been dismissed. When people speak of eight or nine hour laws, they usually mean those laws which apply exclusively to factory labor, not to agricultural or domestic or individual service, and only to such factory labor as is furnished by women or children. Where laws go beyond this (subject to a few minor exceptions instituted in the interest of the public safety, which will be discussed later), they are exceptional, if not unconstitutional ; and in this country, even such laws as apply only to the labor of women of full age may be unconstitutional, under the theory that a woman is a full citizen, entitled, to all the rights that a man has, except where expressly limited by constitutions or constitutional statutes.

Only two of the States and Territories have hitherto made any effort to prohibit all men from laboring as many hours per diem as they choose to contract for. These States are Nebraska and Colorado; and in Nebraska the statute made an exception of farm or agricultural labor, and did not actually prohibit labor overtime, but merely provided that it should be paid double rates. In Colorado the movement did not even get so far as a statute ; but the legislature inquired of the Supreme Court of Colorado, as they had a constitutional right to do, whether a bill which provided that “ eight hours shall constitute a legal day’s work for all classes of mechanics, working men, or laborers employed in any occupation in the State of Colorado ” was constitutional, and also whether an amendment proposed, which limited the act to laborers employed in mines, factories, and smelting-works, would render it constitutional; and the court decided both questions in the negative, holding that it was not competent for the legislature to single out certain industries and impose upon them restrictions from which men otherwise engaged were exempt, and also that both bills violated the rights of parties to make their own contracts, — “a right guarantied by our Bill of Rights, and protected by the fourteenth amendment to the Constitution of the United States.” The Supreme Court of Illinois has also pronounced against laws limiting the hours of labor of adult citizens, male or female. Georgia is the only other State which has said anything about hours of labor in general; but as the statute of that industrious community limits the length of the working-day to the time between sunrise and sunset, the law has gone unchallenged, though it would probably be declared unconstitutional if the question were raised as to industries where it is necessary to work in the night. These cases have undoubtedly given a quietus in the United States to any attempt to limit generally the time that a grown man may labor.

In several States, however, there is a statute which provides what shall be the length of a working-day, in the absence of a special contract to the contrary or a general usage of any particular trade. There are others where such a period is prescribed, in the absence of contract, as to general industrial or mechanical labor ; that is, to labor by the day, and not to farm labor or domestic service. But even this statute has inferentially been held unconstitutional in Nebraska and Illinois, and directly so in Ohio, where the statute applied to the employees of a mine or railroad only, and required that they should work not more than ten hours per diem, and should receive extra pay for overtime ; the court holding that " statutes may be, and they sometimes are, held to be unconstitutional, although they contravene no express word of the constitution, as where they strike at the inalienable rights of the citizen so as to infringe the spirit of the instrument, though not its letter.” The court held, however, that this one did infringe the letter of the Ohio constitution. Otherwise its position would have been somewhat extreme; for the idea that there is anything in the “ spirit ” of the constitutions which the courts are to preserve has been strongly denied by the supreme courts of other States, notably that of Massachusetts.

When we get to the attempts of the labor interests to limit the work of men employed by the State or by cities or counties or public municipalities, or even by contractors for them, we find little more encouragement from the courts. No less than nineteen statutes have been passed, by eleven States, limiting the length of the labor day upon all public work to eight hours, or, in Massachusetts and Texas, to nine hours. It appears clear that the government of a State or city may voluntarily choose to employ its workmen for as short a working-day as it pleases. One would hardly suppose that such statutes were unconstitutional ; and they have been held not to be so, as to United States laws, by the United States Supreme Court. Laws of this kind, to be of any effect, must impose a penalty upon the contractor or laborer working more than eight hours,—that is, must make such labor a criminal offense ; and our courts are indisposed to allow mere industry to be made a crime. Thus, although California has a constitutional provision making eight hours a legal day in all public work, and requiring city contracts to be made on that basis, when one Kuback, having suffered his workmen to work overtime, was indicted as for a criminal offense, the court, with much indignation, held that this part of the statute was unconstitutional. So, in New York, it was held that a similar statute could not be the basis of a criminal indictment for misdemeanor, — which practically nullifies the law. The result is that we may guess these laws to be unconstitutional in at least six of the eleven States referred to, and possibly in more. The length to which legislatures may go in fostering private interest at the expense of the public is curiously shown in another statute of California, which absolutely forbids any work to be done by contract on public buildings belonging to the State, and makes it necessary for every one, architects apparently included, to be employed by the day ; still another provision makes it a felony for a contractor to pay a laborer less than the contractor receives for his work, — a provision which would seem to wipe out the contractor’s profits, and reduce him to the condition of merely receiving wages for superintendence of work.

But, generally speaking, the great body of legislation on this subject is concerned with the labor of women and children in factories. The labor of women of full age is restricted to a certain number of hours per day in fifteen States by thirty-seven statutes. Such statutes exist throughout New England, with the exception of Vermont, and in Virginia, South Carolina, Georgia, and Louisiana. In New England the law ordinarily limits such factory labor to ten hours a day, or sixty hours a week ; the same is the case in all the other States mentioned except South Carolina and Georgia, which allow eleven hours per day ; but Massachusetts allows only fifty-eight hours per week, Saturday being a short day. There is probably no more vital point than this now disturbing the labor organizations of the country, if not the legislatures. It is the key to the whole problem of the working-day, because the hours of factory labor, even if only of women and minors, largely influence the length of the working-day of other persons in other employments. Although this statute has existed fifty years in England, where at first it aroused the greatest opposition, and was affirmed as constitutional by the Supreme Court of Massachusetts many years ago, it is still doubtful whether it is valid as applied to women of full age in other States. The Supreme Court of Illinois has recently rendered a most elaborate opinion, declaring it to be unconstitutional on the somewhat unexpected ground that a woman being a full citizen under the modern theory (save only as expressly relieved by statute of onerous duties, such as serving in the militia or upon juries), she has all the rights that a man has ; and consequently her right to work more than eight hours a day, if she wishes, may not (as handicapping her in the industrial race with persons of the other sex) be arbitrarily taken from her.

It is a picturesque, possibly unexpected, but certainly logical result of the agitation for women’s rights that women should lose some of their privileges ; and it is very likely that until the Illinois decision the right to be exempt from factory labor for more than a short working-day, under serious penalty to the employer, was regarded as a privilege and not a handicap. Even under the women’s rights movement, no State has yet hazarded or indeed proposed a statute that in matters of private contract a woman’s labor should be paid at the same rate per day as a man’s. The restriction of her working-day, therefore, does not serve as an excuse to the employer for paying her less ; for this he already does, has always done, and in most employments would doubtless continue to do, on the sex distinction alone ; but, be it privilege or handicap, it is certainly gone forever in Illinois, and probably in the other States whose constitutions follow the modern theory that a woman is a citizen like a man, and not capable of any special protection under the law. The Supreme Court of Illinois practically held that any legislation which protected women and did not apply to men was class legislation. It denied that men and women could be created into classes under the Constitution. “ Male and female created He them,” but the court of Illinois re-created them otherwise, — an extraordinary conclusion, surely, but not illogical. The decision has been received by the woman suffrage associations with a silence that is positively oppressive.

A still more striking illustration of modern theories conflicting with ancient ideas is shown in the attempt at prohibiting women by law from serving in occupations injurious to their health or morals. One would suppose that this matter might be considered covered by the police jurisdiction of legislatures ; yet it has been questioned, and in California an ordinance of the city of San Francisco, providing that no woman should be employed to serve liquor in retail liquor-shops, was held unconstitutional. Only four States have adopted such a statute; and in Louisiana it has apparently been sustained, as well as in the two recent cases arising in the States of Washington and Ohio ; one may hope that these will be followed in future decisions. Upon a similar basis must rest the statute, now being rapidly adopted throughout the country, requiring that seats shall be supplied to female employees in shops, stores, and factories, and providing for separate toilet-rooms, stairways, etc. Thirty-four such statutes have been passed in twenty-two States, and no court has questioned them.

When we come to the limiting of the working-day of minors, male or female, in factories, we have at last no constitutional difficulty to face; and at least sixty-seven statutes with this aim have been passed in twenty-two States. Even here the question of policy comes up, and the conflict of opinion in various sections of the country is very striking. Besides the States mentioned as limiting the factory day for women of full age, New England and the North generally have statutes which apply to minors only, while most of the Pacific, Rocky Mountain, and Southern States have no such laws. The fact has already been adverted to that Massachusetts has a working period shorter by two hours in the week than that of any other State. The labor unions themselves have come to the conclusion that they cannot go further in Massachusetts without injuring its industry in comparison with that of other States ; and many bills introduced for the purpose of reducing the day’s labor below ten hours have been defeated in the last few years, largely by the influence of the unions ; on the other hand, they are with propriety seeking to persuade the States which have no such statutes to adopt them.

Now, nearly all the States in the Union have established boards of commissioners for bringing about uniformity of law throughout the States, whose duties are to meet and devise statutes identical in terms upon subjects wherein uniformity may wisely be desired ; and having prepared such statutes, to use their influence for the adoption of them in their respective States. Two years ago, urged thereto by the labor unions, the Massachusetts legislature passed a resolution instructing its Commissioners upon Uniformity of Legislation to bring before the next national conference the desirability of factory legislation in other States ; that is, of inducing the South and West to adopt what is commonly known as the ten-hour law. The Massachusetts commissioners brought this up in the national conference which was held at Detroit in the summer of 1895, but they met with the vigorous and nearly unanimous opposition of the Southern and Western States. The fact is that while the labor interest is strong enough to bring about reasonable legislation in some States, it cannot overcome the desire of the States which have no large manufactories to establish new industries by allowing a freer hand to capital; and the result is that, particularly in the South, mill-owners may work their operatives eleven or twelve hours a day, or even more. Not only this, but most of the legislation which forms the subject of this article, and which undoubtedly has the effect somewhat to hamper employers, does not exist in those States ; and there is even an extraordinarily liberal exemption from taxation for new industrial enterprises, often lasting as long as ten years. Hence, the labor reformers have got to a point in New England where it is unsafe for them to proceed further until they have secured the adoption of their ideas in the rest of the country.

“ Sweat-shops ” are defined to be rooms or residences, not factories, in which industrial occupations are carried on. The general health regulation of cities takes up an immense body of legislation, which, as it concerns ordinary sanitary matters rather than labor, we need not consider in this article ; but several States have already adopted laws, and in others laws are pending, which interfere with the conduct of certain industries, or sometimes any industry, in a house or tenement. Now, " an Englishman’s house is his castle ; " moreover, the dearest hope of philanthropists, in the early half of this century, was to do away with the factory system, and to reintroduce domestic labor, as by power-wheels, looms, or lathes, in a man’s own home, — a hope that now seems more than ever possible of realization, owing to the facility of cheaply subdividing electrical power. It is easy to see that any statutes aimed at sweat-shops will be apt to cover also labor in a man’s own home.

Up to the beginning of this year legislation of this sort had been begun in Massachusetts, New York, New Jersey, Pennsylvania, and Illinois ; it is generally aimed at labor upon special commodities, such as clothing, tobacco, and artificial flowers, and makes any dwelling-house or tenement where such work is carried on subject to official inspection, — providing that no room occupied for sleeping or eating purposes can be used for manufacturing except by members of the family living therein, and sometimes prohibiting the manufacture of certain articles, such as cigars, upon a floor any part of which is occupied for residence. In New York and Illinois the statute was pronounced unconstitutional. The question, What is a tenement ? is, of course, important in connection with such legislation. In New York a statute was passed declaring that any building occupied by more than three families should be held to be a tenement-house, and subject to regulation. It is probable that in the future the sanitary regulation of sweat-shops, properly so called,— that is, houses or rooms where a considerable number of operatives not in residence in the house are employed, — will be pretty freely admitted ; but a law which prevents a person or his family from conducting any work they choose in their own home or tenement will not be likely to stand unless the occupation itself is positively dangerous to the health of the community.

Perhaps the most surprising direction in which our labor leaders have secured legislation is that of the regulation by the State of the labor contract itself, and the strengthening of restrictive unions and combinations by the hands of the law. The whole history of the past is summed up in the emancipation of the individual freeman from the guild, of the trader from restraints of trade, of the town merchant from the chartered companies. The economic history of the past consists in the throwing down of all barriers by which laborers were excluded from the labor market; in the wiping out of the interminable and vexatious restrictions and regulations which hampered trade as between man and man, between town and country, between master and apprentice, between the privileged member of a guild and the ordinary freeman. There should be a proverb, “As short as the memory of an agitator ; ” for it was as late as August 4, 1789, that this reform was accomplished in France under the tocsin of the Revolution, while in England, owing to the greater liberty citizens had previously enjoyed, its completion took place fifty years later. A French historian speaks of “ the glorious night of the 4th of August, which made good the demands of the laboring classes for the freedom of individuals as against absolutism, and for the abstinence from every encroachment by a positive economic legislation upon free economic life. " It took a millennium to bring this about; but apparently a century has sufficed to turn labor unions against it.

As constitutions speak primarily for freedom, — freedom of the man against the mass to-day, as formerly for freedom of the mass against the man, — it is not surprising to find this kind of progress backward condemned by the courts most often of all our crude attempts at outworn solutions of perduring problems.

The interference of the State with labor contracts is growing to be something extraordinary throughout the Union. Ten laws, in nine States, provide that when an employer requires from an employee a day’s or week’s or month’s notice of quitting employment, he may not discharge the employee, although drunk or incompetent, without giving him corresponding notice or payment of wages for the full time, even when written consent is given to such an arrangement. These laws have been declared unconstitutional by express decision in one State, and by implication in two others. Ohio and Massachusetts provide against the withholding of wages for bad work, as by fines to weavers, or penalties for damage of machinery and tools. The Massachusetts court at first held this provision unconstitutional, and the statute was slightly amended to meet its views ; but under the stricter Western view it is undeniably class legislation, and the Ohio statute is probably invalid.

Next, we come to the mass of legislation which attempts to prescribe the time, money, and nature of payment of the workman by his employer. It is well known that the most prolific cause of strikes in recent years, except perhaps the employment of non-union men, is the insistence of railroads or corporations, which is at first sight reasonable, upon their right to pay a skilled workman higher wages than a bungler. Union labor is intolerant of excellence ; it seeks an average. In the same way, it is very impatient of all payment which is reckoned, not upon the number of days’ labor, but upon the value of its output. Mining companies, in particular, have evoked its resistance on this point, from their desire to pay the miner for the weight of coal his day’s work has actually turned out at the pit’s mouth. On the other side, it must be said that there is doubtless some fraud in the rejecting of coal or ore under the plea that it is not up to standard. No less than thirteen States have passed laws regulating or forbidding payment by weight of coal or ore, or providing that it shall be weighed before being screened, or sifted, or appraised ; with a system of state inspection, weighing and measuring, at the employer’s expense ; so that the parties cannot evade these provisions even by voluntary contract. These statutes have been expressly annulled in four States out of the thirteen, and by implication in eight others, leaving only one where the law is probably valid.

Then there is a mass of legislation as to the time when or the currency in which the employer shall pay, — weekly, fortnightly, or at least monthly. Undoubtedly such statutes seem wise, despite the inconvenience of requiring an employer to pay everybody — as, for instance, his coachman or his trusted clerk — by the week instead of by the month. Yet the danger of interfering in small affairs with human freedom was curiously shown in this very matter in the panic of 1893 in Chicago. The great employers of that city found themselves absolutely without cash, and hundreds of thousands of workmen were in danger of starving ; for even if the mills and workshops were kept open, wages could not be paid in money. As a benevolent act, a number of employers got together, and at a mass meeting announced, amid the cheers of the multitude, that the danger of closing the mills had been averted, and that money enough had been obtained to insure the payment of wages, — fifty per cent in cash, and fifty per cent in checks or orders which were as good as cash. The wage-earners went home happy, — only to find on the next morning that the wise legislature which represented them had made such an arrangement between master and workman a criminal compact, for which the former was liable to be heavily mulcted, and even to be imprisoned. After some months, when the legislature met, the law was repealed ; but in the meantime the Supreme Court of Illinois had found it unconstitutional. Such legislation has since been declared unconstitutional in five other States expressly, and by implication in three more, and has been affirmed in only three of the seventeen States in which it exists, — among them,however, Massachusetts. There are no less than forty-two laws upon this subject in our country; and there are fifty-five other statutes requiring that all wages and salaries shall be paid in money, legal tender, not in checks, or orders for supplies, or credit upon a store or for rents or for any commodity.

The intention of these statutes is most excellent; they are aimed against the establishment of a credit tyranny over the workmen. Yet out of eighteen States only one has sustained such legislation, while six expressly, ten impliedly, have annulled it as against the freedom of the American citizen. Still more reasonable seems the intent of seventeen other statutes in sixteen States, against the maintenance of general stores by employers of labor, at which the workman is tacitly invited to trade and run up an account. But so great is the conservatism of our Western courts, or at least so unwilling are they to put it out of the power of an American citizen to do anything he chooses or to trade where and how he will, that in four States the law has been annulled ; and, by implication, it is bad in eleven of the others.

The task would be endless to go through all the kinds of tinkering which our legislatures have sought to impose on the industrial relations of their constituents. Dozens of bills are introduced in our state legislatures every year where one is enacted ; of those that are enacted probably more than half turn to waste paper in the courts, and it was known that this would be their fate when they were first engrossed. Yet every legislature has its demagogue who makes political capital of such bills, and its majority of cowards who refuse to go on record as objecting to them, relying consciously on the greater courage of judges, upon whom unjustly, and against all meaning of our constitution of government, this duty of “ Devil’s Advocate ” is thus imposed.

It must not be thought, however, that the courts are always retroactive in labor questions. In the most important matters of all they have been very progressive. In fact, one may say that the great reforms legalizing trades unions and removing strikes from the law of criminal conspiracy have been brought about in this country by decisions of the courts, while in England they were effected by acts of Parliament. Under the common law as it existed in England, until recently, trades unions were illegal; but this was set right in the United States soon after the Revolution ; and the courts have done all they can to further the modern enlightened opinion that the best way to handle labor disputes is to recognize both sides in the law, and gain reasonable adjustment of labor differences, as well as the honest carrying out of such adjustment when made, by the establishment of responsible bodies of organized labor, duly chartered by the state statutes. Almost every State in the Union has such statutes, authorizing the formation of labor unions, — Knights of Labor, Farmer’s Alliances, and similar bodies ; and in no State have the courts questioned them. In fact, the earlier statutes themselves but carried out the decisions of our courts in the first part of the century, when they fully vindicated the right of laboring men to organize and even to act in concert for the bettering of their own condition or the increase of their wages, so long as they do not interfere with other citizens or run counter to federal laws.

The labor unions, however, have gone further than this, and have sought to get special protection of organized labor at the hands of the State by having statutes passed which restrain employers not only from discharging men because they are members of labor unions, but from requiring as a condition that their workmen should not join such unions ; or even by the further step of preventing employers from making free choice in engaging their help among non-union men ; and while there is no legislation yet, bills have been introduced by labor leaders which in effect would put non-union men at the actual mercy of the trades unions, as by legalizing strikes or boycotts against them. Such legislation is probably unconstitutional, and has been definitely so held already in the State of Missouri ; and the courts of at least four of the ten other States which have tried it will probably follow the Missouri decision. To make it a misdemeanor for an employer to exercise his choice of workmen would indeed seem to be going further than the sentiment of a free country should permit.

Union labels — that is, the recognition by statute of the right of union labor to stamp its output with a trademark indicating that it is made under union conditions, or what is called “ fair work ” — have been expressly recognized by the legislation of nearly all our States, and their infringement has been penalized, as in case of the infringement of a patent right. Twenty-four States have already passed such statutes, and others are rapidly following. Legislation of this kind is welcome, though it would seem that the union thus acquiring a property right should, in fairness, become legally organized itself ; but when labor interests take the step of hindering fair relations between employer and employed, and insurance against accident, old age, or disability, by making impossible the institution of those insurance or benefit funds which have been successfully working for many years, in some States, particularly in the case of the larger railroads, it seems that they have their faces set against progress once more. Four States have passed statutes forbidding the institution of insurance or benefit funds, even when the employees make their contributions voluntarily, and the corporation gives a large amount; while only two States have so far passed statutes allowing it. Yet these insurance and benevolent funds have been eagerly desired by labor leaders in Europe ; Mr. Chamberlain’s bill, just enacted by a conservative ministry in England, evoked criticism only because it was compulsory ; and it may be remarked that three of the four States referred to have already, through their courts, declared the prohibition of such funds unconstitutional.

We have left the great subject of strikes to the last. Undoubtedly, our radical labor unions will be glad of statutes which make legal and proper any kind of combination to strike, or to boycott employers, or to control fellow workmen. The British Parliament has recently gone very far in this direction, by making any combination in labor disputes, of however many persons, and although aimed specifically against other persons, not an unlawful conspiracy unless the acts committed by the members of the combination are criminal offenses in themselves. This act applies only to industrial labor, not to agricultural labor, and still less to other matters than labor disputes. It would consequently be unconstitutional in this country, where most of our written constitutions forbid class legislation and special privileges. Nevertheless, one State (Maryland) has gone to the length of copying the English statute ; and there are seven others which have amended the law of conspiracy by providing that there must be an overt act, criminal and unlawful in itself, in all cases of combination, to make the persons combining guilty of a conspiracy. This statute is not unconstitutional where it applies, as it usually does, to combinations of all classes of persons ; but it is somewhat difficult to reconcile it with the legislation against trusts, which generally exists in the same States, whereby any combination of employers or manufacturers is made a criminal offense, as even by setting a price for a line of goods or a rate of transportation, — which obviously any one person or corporation for itself alone would necessarily have the right to do, in any free country.

Further and still more radical statutes have been enacted in the direction not only of legalizing strikes and boycotts, but even of making it impossible to prevent the disorder and destruction of property which may result therefrom. The State of Nebraska has passed a statute which practically wipes out all chancery powers and all equity jurisdiction. Under this statute, it would seem that if a body of strikers go even to the length of stopping railway trains and preventing interstate commerce, after an injunction has been obtained by the district attorney or the railway, they cannot be permanently detained for disobedience of it, or restrained by any equity process, at the time, but can only be once arrested, and then immediately discharged, under a common appeal-bond, to await their trial as for a criminal action before a jury many months after the riot has ceased. Of similar intent is the provision inserted in the constitution of Colorado, and enacted by statute in Missouri, which in substance makes it a criminal offense for any owner of property to employ watchmen, private police, or Pinkerton men to protect life or property where the local authorities fail or refuse to do so.

The enactment of these two statutes side by side would paralyze the “ resources of civilization,” the arm of the law, and would make criminal that right of self-protection which was inherent in Saxon freemen before modern law began. The fact that, through the bungling of Congress, the judicial branch of the government was led into the exercise of power properly appertaining to the executive — if such were the fact — would be no excuse for blind legislation like this. It gives the desired pretext to Mr. Debs to argue that we have lost our freedom ; to say that he “ was enjoined off the face of the earth,” when in fact he was enjoined from trespassing on a particular lot of private property. The Court of Chancery is the only power, in English civilization, which can compel a man affirmatively to carry out his contract or abstain from wrong to others, — too essential a power to any civilization to be abandoned wholly, even when, for the nonce, it is abused.

The reader may think that we have about exhausted the legislation of recent years upon the labor question. Such is not the case, however ; and there is quite a mass of it left untouched. It is necessary only to mention the extraordinary number of statutes which exist, seeking to give special advantages, privileges, preferences, peculiar political rights, or peculiar educational rights to those engaged in manual labor. (It is a curious thing, by the way, that the great body of clerks, office employees, even salesmen in stores, though nearly equal to industrial laborers in number, have hardly been considered by our legislation. Except for a very few recent statutes in a few States restricting the hours of labor of saleswomen, and the law requiring that they shall be furnished with seats, our law-makers have not concerned themselves with them any more than they have with farm laborers, —possibly because the majority of the former are women and children not having votes, possibly because they are not duly organized into " knighthoods ” or " federations.”)

From these statutes we go on to the laws giving wage creditors preference, sometimes even over farm laborers, clerks, or domestic servants ; while, on the other hand, in all States, wages themselves, to a very considerable amount, are exempt from execution or attachment by the creditor of the laborer. The exemption has grown so large in some Western States that practically no property is liable for debt except money invested in stocks and bonds ; and the State of Wyoming, for instance, has found it necessary to pass a law forbidding the assignment of debts to creditors living out of the State, — that being the only method by which a claim can be collected against any person not a millionaire, in that honest commonwealth. This statute is probably unconstitutional. Then there are statutes providing that if a person has a claim for manual services, he may get special attorneys’ fees from the defendant, shall be entitled to a hearing of his action before all other actions, shall have no exemptions of property valid against him even in the hands of persons as poor as himself ; and in case the defendant is a corporation, every individual stockholder, although a widow or an orphan, shall be liable personally and alone for the amount. No security for costs is required of the happy plaintiff in labor actions ; laws against trusts and combinations do not apply to him ; his agricultural products are entitled to special rates on the railways, and he himself to a free passage if he go with the cattle he ships. I find about a dozen States with such laws, recently passed, in four of which, however, some of them have already been held unconstitutional by the local courts.

Lastly, we have the efforts made by laborers who are citizens to prevent aliens from getting employment. Three States (California, Nevada, and Idaho) have passed statutes that no alien can be employed by any corporation in the State. The law was annulled in California by the strong arm of the federal court. Seven States have passed laws that no alien can be employed on any public work, or in any labor that the State, county, city, or town is to pay for; and in two of them the courts have already annulled the law. Three States have attempted to pass laws, independently of the national government, forbidding the immigration into the State, although from another State, of persons who are aliens and under contract to labor therein. One may safely say that this legislation will vanish when it first appears in the federal court-room.

There are no less than twenty-three States which seek specially to protect the industrial laborer from undue influence upon election days. He must be given time to vote ; no threat of stopping the mill, or hope of opening it, must be expressed by his employer; nothing political must be printed on the envelope in which he receives his wage-money ; he must be allowed to be a candidate himself without losing his place ; and various other safeguards are thrown round him, all of which are fair enough, though one would suppose that the mill operative is as well able to look out for himself, politically and industrially, as the domestic servant or the farm laborer, yet unrecognized in our legislation.

Now what is the outcome of all this ? We have run over a mass of legislation which exists in every State of the Union, and covers no less than 1639 laws, all of which have been enacted during the past ten years. The general characteristic of all of them, though some are harmless enough, is that they seek —

(1.) To give the industrial laborer special privileges ; or

(2.) To control his actions, or the actions of his employers or of other employers, in his peculiar interest.

When in doing this they have clashed with the old inherited freedom of the Anglo-Saxon freeman the courts have been forced to hold them invalid ; and thus we have this extraordinary result, which perhaps justifies the superficial complaint of the labor agitator that the courts are against him. We have discussed some thirty-five classes or kinds of legislation essayed in the interest of the industrial employee. Of these thirty-five classes, in one or another State no less than nineteen have been held, as to one law or several laws, inconsistent with the state or federal constitution. If we assume that each court decision was right, and will be followed in other States, we find that no less than fifty-six per cent of the legislation has been annulled by the courts. We cannot assume this, of course, especially as in some of the States the courts have taken a different view ; but we may assume that where there are more than one or two decisions on the same kind of law in different States, holding the law invalid, such is the general constitutional law throughout the Union. Even according to this test, an immense amount of legislative activity has been rendered idle and vain by the judicial branch of our government.

But before drawing a moral, let us for one moment consider what the legislatures have done in the other direction ; that is, either in the direction of affirming liberty and protecting classes from classes or individuals from individuals, or in the still more hopeful direction of bettering industrial conditions by positive legislation of the beneficial sort, — legislation which is constructive rather than restrictive. The tale here is short enough. Beyond the one great statute, now happily adopted by nearly half our States, which legalizes arbitration and conciliation in labor disputes, and provides machinery for it, the only legislation which we can point to is that enacted by a dozen or more States, expressly affirming or defining the right of the American citizen to employment free from intimidation or molestation. Such statutes, indeed, but enact the common law; nevertheless, their existence is a hopeful sign. Thus, we find in Maine and Massachusetts that threats, intimidation, or coercion are forbidden both to the employer and to the employee. In Massachusetts they are specially forbidden as from labor unions to individual laborers, while in New England, New York, and the Northern States generally it is made a penal offense to prevent any person from entering into or continuing in the employment of any other person, or to prevent the employer from employing him, or to interfere in any way with his lawful trade, his tools, or his property, or to conspire to compel another to employ or discharge any person, or in any way alter his mode of business. This last statute exists only in Oregon, the Dakotas, and Oklahoma. It probably was not passed by other States because they were aware that it was already the law of the land. New York, New Jersey, Pennsylvania, and a few Western States have statutes expressly permitting lawful and peaceable strikes, but such statutes are not necessary in our country, whatever may once have been the case in England ; the same remarks apply to the statute existing in New York and the Northwest against boycotting, — which, being a conspiracy to do a private wrong, has always been “ against the peace,” whether of kingdom or of republic. Many States have statutes against blacklisting, which is the same offense reversed ; that is, it is a combination of employers to prevent a discharged employee, or a number of employees, from getting new employment. Georgia has gone to the length of requiring a corporation discharging an employee to furnish him with a written analysis of the defects of character which led to his discharge ; but, with corresponding luminosity, the high court of that State has declared that if the right to free speech exists in the North, there is a similar right in the South to silence ; and that the free-born American may " shut up ” about his own business, and not be haled into court to discover how he manages it. But these three classes of legislation are all ; namely, provision for arbitration, prevention of intimidation, prevention of boycotting and blacklisting.

This legislation is in the line of reasserting individualism. As we have given the number of restrictive laws, it may be well also to enumerate laws which we may call emancipative or protective ; that is, those that assert common law principles of personal liberty. They number in all ninety-nine, and exist in about twenty States. A slight distinction may be made between them and the statutes of the constructive sort, such as acts legalizing labor unions and creating boards of arbitration. There are about one hundred and forty - two such acts, twentythree of which are concerned with state boards of arbitration.

In the line of state socialism we find very little. Despite Mr. Bellamy’s ponderous romance, based upon the easy fairyland expedient of calling the average production of a man four thousand dollars when it is really about six hundred, the American citizen is not yet a socialist. Agricultural experiment stations have been established at the state expense ; and agricultural lectures in the West, evening lectures, with stereopticon accompaniment, to industrial laborers in the East, are also often provided for, as well as local libraries and trade schools. This is well enough. Then there are farmers’ institutes with appropriations ; bounties for the destruction of a long list of noxious animals, including English sparrows, and of insects, weeds and thistles ; and laws subjecting private land to the exploitation of local irrigation companies,— all, perhaps, allowable.

We find provisions, beside, for state aid to needy farmers in regions affected by drought, and to sufferers from fire or flood, — also appropriations for seed grain, potatoes, or the seed of any crop ; bonds are issued by counties or States, in North Dakota even by townships, to purchase seed for farmers. State bounties for production are beginning to make their appearance ; among the articles so far favored are beet-root sugar, canaigre leather, potato starch, silk cocoons, binding-twine, spinning-fibres, sorghum, and chicory. The State of Nebraska, however, has given up the silk industry, and last May passed an act authorizing the executive to sell the plant already established for what it might be worth, or to give it to the United States government, provided the latter would agree to run it, while the state-paid specialists on silk, who were to learn the business and give free education to others, have apparently " lost their job.” All this would seem to be in the nature either of class legislation, or of engaging the State in private business.

Lastly, we are beginning to have employment bureaus conducted by the State, whose duty it shall be to furnish the unemployed with employment. Bills to this end have been proposed in several States, but only in Montana and Utah have they yet been enacted ; though Massachusetts created a commission to inquire into the state of the “ unemployed.” We seem to be on the verge of a general legislative movement which will throw upon the State the permanent duty of inquiring whether all its able-bodied citizens are employed at satisfactory wages, and if not, why not ; and of finding for them, or such of them as are not satisfied, positions suited to their tastes or abilities; or, if that prove impossible, of creating for them some labor by “anticipation of necessary public work.” To those who believe, with Thomas Jefferson, that in such sad cases the duty of the State, as such, ends with the distribution of bread in forma pauperis, — that is, with almshouses and asylums, — the advance is a far one indeed. But it is reassuring to find these statutes so few in number. Only thirty-six laws embodying a state socialistic principle have been passed in the whole forty-eight States and Territories of the Union in the last ten years, and these are confined mainly to seven or eight States in the extreme West. One cannot deny, nevertheless, that they show a tendency to grow in number, and it is national legislation which has set the bad example ; although obviously, under our constitutional government, the federal authorities may do many things, as, for instance, the establishment of bounties and the regulation of interstate commerce, which the States under their constitutions probably cannot do.

But this is of the future ; let us return to the present. What strikes us most upon this consideration is that the charge which our laboring people are beginning to make, that our courts are unfavorable to their interests, while justified by the facts upon the surface, is unsustained by a more careful study. It is our legislatures that are at fault, — our legislatures, playing politics. Some of their laws are like the crude experiments of a schoolboy constructing his scheme of remedies upon a slate. Labor leaders distrust experience, socialists detest lucidity, and our temporary law-makers desire to appear “ friendly to labor.” Underlying all this are the fundamental misconceptions of the time : that the State, because it is a democracy, may wisely tyrannize over its members; that a government, because instituted by and for the people, has the duty of bringing dollars to their private pockets. Of the thirty-five classes of edicts alluded to in this article, perhaps a dozen are wise and proper for a free people ; these will stand while the others are winnowed away in the trial.

Yet, patience : they may have done us high service in the disappearing; we have been taught thereby. And if it be a court that blows the chaff away, blame not the judiciary, our third estate, that it acts openly, American-like, man-fashion ; civic courage in a nation is what moral courage is in an individual; and of such courage our nation stands in greatest need.

F. J. Stimson.