Popular Law-making Part 11

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

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

[Footnote 2: Ma.s.sachusetts _v._ Jacobson, 197 U.S. 11.]

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

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

[Footnote 1: Ma.s.sachusetts R.L., 106, secs. 56 to 60 inclusive.]

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

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

A California law[1] once made it a criminal offence for any person to sleep with less than one thousand feet of air in his room for his own exclusive use! It is indeed a crime to be poor.

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

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

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

The bulk of factory legislation is too vast for more than mention in a general way. It fills probably one-fourth in ma.s.s of the labor laws of the whole country, and applies in great and varying detail to the general condition of factories, workshops, and in most States to large stores--department stores--using the word in the American sense.

It may be broadly a.n.a.lyzed as legislation for the construction of factories, for fresh air in factories, for general sanitary conditions, such as the removal of dust and noxious gases, white-was.h.i.+ng, sanitary appliances, over-crowding, stair-cases, fire-escapes, and the prohibition of dangerous machinery. As has been said, it was begun in Ma.s.sachusetts in the fifth decade of the last century, based originally almost entirely on the English factory acts, which were bitterly attacked by the _laissez-faire_ school of the early nineteenth century, but soon vindicated themselves as legitimate legislation in England, although not even there--still less in our States--have we gone so far as the Continental countries.

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

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

But although in India we are told the natives throw themselves under the wheels of automobiles, it is not probable that in American civilization there would be serious abuse of the law in this particular. Five thousand dollars, for instance, for loss of life or limb or eye, with a scale going down, as does the German law, to a mere compensation for time lost and medical attendance in ordinary injuries, would be sufficient in equity and would surely not encourage persons voluntarily to maim themselves.

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

(1) Weekly or time payment laws. These exist in more than half the States, and are always const.i.tutional as to corporations, but are possibly unconst.i.tutional in all States except Ma.s.sachusetts when applied to private employers.

(2) Cash-payment laws, requiring payments to be made in actual money.

These statutes are commonly combined with those last mentioned and are subject to the same const.i.tutional objections. As a part of them, or in connection with them, we will put the ordinary anti-truck laws--that is, legislation forbidding payment in produce or supplies or commodities of any kind. Finally, the store-order laws forbidding payment to be made in orders for indefinite supplies on any particular store, still less on a store owned or operated by the company or employer. Such laws have sometimes been held unconst.i.tutional in all particulars, sometimes when they apply only to certain industries, as, for instance, mines. In the writer's opinion they are never const.i.tutional when applied to corporations, nor are they cla.s.s legislation when applied to mines, for the reason that it is well known that mines are situated in remote districts where there are few stores, and that the maintenance of a company store has not only led to much cheating but to an actual condition of peonage. That is to say, the miners would be held in debt and led to believe that they could not leave the mine or employment until the debt was liquidated.

Belonging usually to the most ignorant cla.s.s, it is matter of common knowledge that this has been done, and that Poles, negroes, or others of the more recent immigrants have been permanently kept in debt to the company store or by advances or in other ways, as for rent or board.

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

(4) The next matter which has evoked the attention of philanthropists and the angry resentment of the persons they supposed they were trying to benefit, is that of the benefit or company insurance or pension funds. The principle of withholding, or contracting with the employees to withhold, a small proportion of their wages weekly or monthly to go into an endowment or benefit fund, even when the company itself contributes as much or more, was inst.i.tuted with sanguine hopes some forty years ago, first in the great Calumet & Hecla Copper Company, and then in some of the larger railroads; and was on the point of meeting general acceptance when it evoked the hostility of organized labor, which secured legislation in Ohio and other States making it a crime, or at least unlawful, for either side to make a contract whereby any part of the wages was taken or withheld for such purposes.

The German theory of old-age pensions is based upon this principle; but it is so unpopular in America that frequently in the South, when things are done for the workmen, they are hardly permitted to know it; a pretence, at least, is made that their own contributions are the entire support of the hospital, library, reading-room, or whatever it may be, when, in fact, the lion's share is borne by the company. There is no doubt that the American laborer resents being done good to, except by himself; and is organized to resent any system of beneficence to the point of making it actually prohibited by the law.

Much of the legislation described in this chapter is wise, and probably all of it is wise in intention. Yet, in closing, one cannot resist calling attention to the unforeseen dangers that always attend legislation running counter to the broad general basis of Anglo-Saxon civilization. One need make no fetich of freedom of contract to believe that laws aimed against it may hit us in unexpected ways. For one famous example, the cash weekly-payment law in Illinois existed in 1893. In that year there was a great panic. n.o.body could obtain any money; mills and shops were closing down, particularly in Chicago.

Everybody was being thrown out of employment, and distress to the point of starvation ensued. In the very worst days of that panic some of the largest and most charitable employers of labor met their employees in a monster ma.s.s meeting, and reported that while they could not pay in full and nothing apparently was in prospect but an actual shutdown, they had succeeded in getting enough cash to keep all their employees, provided they would take weekly half what was owing to them in money, and the short-time notes or obligations of the firms, or even of banks, for the remainder. The offer evoked the greatest enthusiasm, was unanimously accepted by the thousands of employees, and amid great rejoicing the meeting adjourned;--only to find by the advice of their counsel next morning that under the laws of the State of Illinois such a settlement was made a crime, and that for every workman who received his wages each week only half in cash, the employer would be liable to a one-hundred-dollar fine, and thirty days' imprisonment.

The great reform, not of legislation but of condition, in the labor question, is unquestionably to arrive at a status of _contract_.

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

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

This world-wide problem is really rather a racial problem than an economic one amongst Anglo-Saxons. The inability of the African and the Caucasian to live side by side on an equality largely results from this economic 'question' which, broadly stated, is that the Caucasian is willing to work beyond his immediate need voluntarily and without physical compulsion; the African in his natural state is not. The American Indian had the same prejudice against manual labor; but rather that, as a gentleman, he thought himself above it; and his character was such that he always successfully resisted any attempts at enslavement or even compulsory service. The negro, on the other hand, is not above such work, but merely is lazy and needs the impulse of actual hunger or the orders of an overseer. We are, of course, speaking of the ma.s.s of the people, in their natural state, before any enlightenment gained by contact with more civilized races. The whole question is discussed on its broadest lines by Mr. Meredith Townsend in his luminous work, "Asia and Europe." He seems hopelessly to conclude that there is no possibility of white and black permanently living together as part of one industrial civilization unless the latter race is definitely under the orders of the former. Without a.s.senting to this view it may be admitted that it is one which has very largely prevailed in the Southern States, and the difficulty there is, of course, with agricultural labor. So fast as the negro can be made a peasant proprietor, the question seems to be in a measure solved; but it is alleged to be almost impossible to get the necessary labor from negroes when done for others, under contract or otherwise.

There is, therefore, a ma.s.s of recent legislation in the Southern States which we may ent.i.tle the _peonage_ laws, which range from the highly objectionable and unconst.i.tutional statute compelling a person to carry out his contract of labor under penalty as for a misdemeanor, to the more ingenious statutes which get at the same result by the indirect means of declaring a person guilty of breaking a contract under which he has acquired money or supplies punishable as for fraud.

There are also statutes applying and very greatly extending the old common-law doctrine of loss of service; making it highly criminal for a neighbor to incite a servant or employee to break his contract or even to accept the work of a laborer without ascertaining that he has not broken such contract, as, for instance, by a certificate of discharge from his last master. These laws, it will be seen, differ in no particular from the early labor laws in England, which we carefully summarized for this purpose; except, indeed, that they do stop short of the old English legislation which provided that when a laborer broke his contract or refused to work he could be committed before the nearest magistrate and summarily punished. Even this result, however, has been arrived at by the more circuitous and ingenious legislation of Southern States such as in Georgia, cited in the charge to the Grand Jury.[1] The principle of this elaborate machinery is always that money advances, or supplies, or a lease of a farm for a season or more, or the loan of a mule, having first been made under written contract to the negro, the breaking of such contract or the omission to repay such advances, is declared to be in the nature of fraud; the entering into such contract with intention to break it is declared to be a misdemeanor, etc., etc. The negro refusing to carry out his labor contract is then cited before the nearest magistrate, who imposes under the statute a nominal fine. The negro, being of course unable to pay this fine, is remanded to the custody of his bondsmen, who pay it for him, one of them of course being the master. The negro leaves the court in custody of his employer and carries away the impression with him that he has escaped jail only by being committed by the court to his employer to do his employer's work, an impression possibly not too remote from the fact. It is easy to see how to the African mind the magistrate may appear like an Oriental cadi, and how he may be led to carry out his work as submissively as would the Oriental under similar circ.u.mstances.

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

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

The farmer gets his subsistence, but the share of the proprietor in the crop produced is almost inappreciable.

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

This is probably the only legislation on such matters which adds anything to the common law. Many of the States, usually Western States--apt to be more forgetful of the common law than the older Commonwealths--have been at pains to pa.s.s statutes against blacklists.

Such statutes are entirely unnecessary, but as they relate to combinations they will be considered in the next chapter.

From the official report of the U.S. government, prepared by the Commission of Labor in 1907, it appears that twenty States and Territories, including Porto Rico, have provisions against intimidation, of which the best example is the New York statute quoted above. Alabama and Colorado have express statutes against picketing, other than the general statutes against interference with employment.

Nineteen other States, of which, however, only a few--Ma.s.sachusetts, Michigan, Oregon, Texas, and Utah--are the same, have provisions against the coercion of employees in trading or industry, usually to prevent them from joining unions, but such statutes are also levelled against the compelling them to buy or trade in any shop, or to rent or board at any house. Five States have statutes prohibiting the hiring of armed guards other than the regular police, and especially the importing such from other States, Ma.s.sachusetts and Illinois among the number, though none of the five are so radical as the later statute of Oklahoma quoted below. Statutes for the enforcement of the labor contract exist usually only in the South, but we find a beginning of similar legislation in the North, both Michigan and Minnesota having statutes making it a misdemeanor to enter into a labor contract without intent to perform it in cases where advances are made by way of transportation, supplies, or other benefits. The new anti-tip statute or law forbidding commissions to any servant or employee is to be found in Michigan, Wisconsin, and other States (see page 155 above). A few States require any employer to give a discharged employee a written statement of the reason for his discharge, but such statutes are probably unconst.i.tutional. Colorado has the extraordinary statute forbidding employees to be discharged by reason of age.

The common law of loss of service is strengthened generally in the Southern States by statutes against the enticing of employees. Public employment offices, as well as State labor bureaus, are now maintained in nearly all the States.

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

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

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

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

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

There is, however, one matter we have reserved for the last, because it is one of the two or three points about which the immediate contest before us is to rage. That is the case of individual discharge. It is elementary that just as an employee may leave with cause or without cause, so an employer may discharge without cause or with cause, nor is he bound to state his reasons, and certain statutes requiring him to do so with the object of avoiding a blacklist have been declared unconst.i.tutional in Southern States. But organized labor is naturally very desirous of resenting the discharge of anybody for no other reason than that of being a union man. In fact it is not too much to say that this, with the legalization of the boycott, are the two great demands the unions are now making upon society. Therefore, statutes have been pa.s.sed in many States making it unlawful for the employer to make it a condition of employment that the employee should not be a member of a union; or to discharge a person for the reason that he is a member of a union. And closely connected with this is the combination of union employees to force an employer to discharge a man because he is not a member of a union. This last will come logically under the next chapter covering combinations and is not yet the subject of any statute. Now the difficulty of these statutes, about the discharge of union labor, is that it is almost impossible to go into the motive; a man is discharged "for the good of the service."

It is easy, of course, to provide that there should be no written or definite contract on the matter; but it is not easy to punish or prohibit the discharge itself without such contract. Such legislation has, however, been universally held unconst.i.tutional, so that at present this must be the final word on the subject. The right of the employer to employ whom he likes and to discharge whom he likes and make a preference, if he choose, either for union or non-union labor, is one which cannot be taken away from him by legislation, according to decisions of the Supreme Courts of Missouri, New York, and the United States. Therefore, as the matter at present stands, the const.i.tutions, State and Federal, must be amended if that cardinal right of trade and labor is to be interfered with.

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

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

In 1891 we find more laws regulating or limiting the hours of labor of women and children, prohibiting it entirely in mines; several anti-truck laws; two laws against the screening of coal before the miner is paid, and in Ma.s.sachusetts, laws against imposing fines for imperfect weaving and deducting the fine from the wages paid.

Pennsylvania thinks it necessary to enact by statute that a strike is lawful when the wages are insufficient or it is contrary to union rules to work, which latter part is clearly unconst.i.tutional. There is one statute against boycotting and three against blacklisting.

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

In 1893 the laws establis.h.i.+ng State bureaus of labor become numerous.

Four more States adopt sweat-shop laws, and there is further regulation of child labor. Six States adopt statutes against blacklisting.

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

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

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