Popular Law-making Part 12

In 1897 California provides a minimum wage of two dollars on public contracts, and Kansas adopts the first statute against what are termed indirect contempts; that is, requiring trial by jury for contempts not committed in the presence of the court. There is a little legislation against blacklisting, and Southern States forbid the farming out of convict labor.

In 1898 Virginia copies the Kansas statute against indirect contempts, and one or two States require convict-made goods manufactured outside the State to be so labelled, which statutes have since been held unconst.i.tutional as an interference with interstate commerce.

In 1899 the question of discrimination against union labor becomes still more prominent and it is in some States made a misdemeanor to make the belonging or not belonging to a union a condition of employment. All these statutes have since been held unconst.i.tutional.

In 1900, a year of great prosperity, there is almost no labor legislation.

In 1901 we only find laws establis.h.i.+ng free employment bureaus, except that California provides a maximum time for women and children of nine hours a day in both manufacturing and mercantile occupations, and a minimum wage upon all public work of twenty cents an hour.

In 1902 Colorado overrules her Supreme Court by getting by const.i.tutional amendment an eight-hour day in mines. Ma.s.sachusetts pa.s.ses a joint resolution of the Legislature asking for a Federal const.i.tutional amendment which shall permit Congress to fix uniform hours of labor throughout the United States, and Kentucky and other Southern States begin to legislate to control the hours of labor of women and children.

In 1903 this movement continues and in the Northwestern States, Oregon and Colorado, the length of hours of labor of women of all ages is generally limited. Weekly payments and anti-truck laws are adopted.

Montana forbids company boarding-houses and Colorado makes the striking attempt to do away with the so-called dead line; that is to say, a statute forbidding any person to be discharged by reason of age, between the years of eighteen and sixty. California follows Maryland in abolis.h.i.+ng the conspiracy law, both as applied to employers and employees.[1] It does not seem that in either State this statute has yet been tested as cla.s.s legislation. Legislation against the open shop continues in far Western States, while Minnesota makes it a misdemeanor for an employer to exact as a condition of employment that the employee shall not take part in a strike.

[Footnote 1: See the next chapter.]

In 1904 there is little legislation. Far Western States go on with the protection of child labor, particularly in mines, and Alabama adopts a general statute against picketing, boycotting, and blacklisting.

In 1905 we first find legislation against peonage or compulsory labor in the Southern States, North Carolina and Alabama. The celebrated const.i.tutional amendment of New York is enacted, which gives the Legislature full power to regulate wages, hours, and conditions in public labor. (See above, p. 161.) Further regulation of factories and mines goes on, with State employment agencies and reform of the employers' liability laws. Colorado and Utah prohibit boycotts and blacklisting, and in one or two States corporations are required to give every person discharged a letter stating the reason of his discharge, which statute was since held unconst.i.tutional in Georgia.

In 1906 the usual sanitary legislation goes on. Ma.s.sachusetts adopts an eight-hour law for public work. Arkansas and Louisiana attempt legislation preventing the violation of contract by persons farming on shares, or the hiring of farm laborers by others, and Ma.s.sachusetts establishes free employment bureaus.

In 1907 four more Southern States attempt laws to control agricultural labor; the factory acts and child-labor laws continue to spread through the South; New York largely develops its line of sweat-shop legislation, and more child-labor laws and laws prohibiting the work of women in mines are introduced in the South.

In 1908 Oklahoma adopts the Kansas contempt statute, and Virginia provides for appeals to the Supreme Court in contempt cases. South Carolina makes it a misdemeanor to fail to work after being employed on a contract for personal services, or for the employer on his side to fail to carry it out. Oklahoma adopts a curious strike statute which, besides the usual provision for the closed shop, makes it a felony to bring workmen, _i.e._, strike-breakers, from other places in the State or from other States under false pretences, including, in the latter, concealment of the existence of the strike; and makes it a felony to hire armed men to guard such persons.

With this climax of labor legislation our review may properly end, but the reader will not fail to note the advantage that may be derived from experience of these extraordinary statutes as they are tried out in the different States and Territories. It could be wished that some machinery could be provided for obtaining information as to their practical working. The legislation of 1909 was princ.i.p.ally concerned with the matter of employers' liability for accidents, a conference upon this subject having been held by three State commissions, New York, Minnesota, and Wisconsin. Ma.s.sachusetts extended the act of 1908 permitting employers and employees to contract for the compensation of accidents; and Montana established a State accident insurance for coal-miners. California and Montana exempted labor in a large degree from the operation of the State anti-trust laws; but Was.h.i.+ngton adopted a new statute defining a conspiracy to exist when two or more persons interfere or threaten to interfere with the trade, tools, or property of another, and proof of an overt act is not necessary. North and South Carolina, Texas, and Connecticut pa.s.sed the usual statute protecting employees from being discharged because of members.h.i.+p in a trades-union, which, as we have said, has been held unconst.i.tutional wherever contested. Arizona, California, Idaho, Was.h.i.+ngton, Wyoming and Nevada enacted or amended eight-hour measures for employees in mines, but little was accomplished for children in the Southern States.[1]

[Footnote 1: See "Progressive Tendencies in the Labor Legislation of 1909," by Irene Osgood, in the _American Political Science Review_ for May, 1910.]

The labor-injunction question has been recently covered by an admirable study prepared by the Ma.s.sachusetts Bureau of Statistics and published in December, 1909. The investigation covers eleven years, from 1898 to 1908, in which there occurred two thousand and two strikes. In sixty-six of these strikes the employers sought injunctions and in forty-six cases injunctions were actually issued.

In only nine cases were there proceedings for contempt of these injunctions, while only in two cases out of the two thousand were there any convictions for contempt of court. In eighteen cases injunctions were sought to prevent employees from striking, but only in four of these were they granted, and one of these was later dissolved. Seven bills were brought by employees against unions for interference with their employment, etc., and in three cases unions sought injunctions against other unions. In one case a union brought a bill against an employer and in one case an employer sought an injunction against an employers' a.s.sociation. Under a decision of the Ma.s.sachusetts Supreme Court it was declared unlawful for a trade-union to impose fines upon those of its members who refused to obey its orders to strike or engage in a boycott. In 1909 a bill was introduced in the Legislature with the special object of permitting this, but it failed of pa.s.sage. The _Bulletin_ contains a brief history of equity jurisdiction in labor cases and reprints all the decisions of the Supreme Court of Ma.s.sachusetts down to the year 1909, and the actual injunctions issued by Superior Courts in five late cases, with a chronological summary of proceedings in cases concerning industrial disputes in all Ma.s.sachusetts courts for the eleven years covered by the report.

The matter of labor legislation is of such world-wide importance that a word or two may not be out of place concerning recent legislation in other countries. Other than factory and sweat-shop acts and hours of labor laws, there are three great lines of modern legislation in Europe, North America, and Australasia: employers' liability, old-age pensions, minimum wage. On the first point, the tendency of modern legislation, as has been intimated, is to make the employer liable in all cases for personal injuries suffered in his employ without regard to contributory negligence or the cause of the accident. That is, it is in the nature of an insurance which the employer is made to carry as part of his business expenses. It has the great advantage of doing away with litigation and confining his liability to reasonable amounts, and in the writer's opinion is in the long run for the benefit of the employer himself. There is one exception. The employer is not liable when the injury was caused by the wilful misconduct of the workman injured.

Old-age pensions, or State insurance against old age as well as disability, now exist in several countries, notably Germany, New Zealand, and England. The German law[1] is much the most intelligent and the least communistic in that it provides that half the fund is raised by deductions made from the wages of the workmen themselves.

It applies to all persons, male and female, employed under salary or wages as workmen, journeymen, apprentices, or servants; also to all industrial workmen, skilled laborers, clerks, porters, and a.s.sistants; also to all other persons whose occupation consists princ.i.p.ally in the service of others, such as teachers who do not receive an annual salary of more than five hundred dollars; also to sailors and railway employees; also to domestic servants. No one is obliged to insure himself who is over the age of seventy, and no one is bound to insure who does not work in a required insurance cla.s.s for more than twelve weeks or fifty days in each year. When women get married, they insist on reimburs.e.m.e.nt of one half of all the insurance a.s.sessments they have paid up to that time, provided such a.s.sessments amount to two hundred weeks, or four years--a provision which must very much help out marriages, and from which the amusing deduction may be drawn that the average value of a husband in Germany is considered to be about one-half the expense of supporting his wife for a period of two hundred weeks, or four years. On the other hand, the law has the effect of postponing marriage for the first four years of a woman's employment, as it practically imposes a penalty upon a woman marrying before four years from the time when she begins to pay to the State insurance money.

[Footnote 1: U.S. Industrial Commission Reports, vol. V, pp. 228-241.]

The English old-age pension law is a mere gratuity in the nature of outdoor relief, giving to everybody who has reached a certain age, without reference to any previous service, tramps or drones as well as workmen. It is a law indefensible in principle and merely the accident of a radical government. It provides that every person over seventy whose yearly means do not exceed thirty-one pounds ten s.h.i.+llings (_i.e._ income from property or privilege) and is not in "regular receipt of poor relief" and has not "habitually failed to work according to his ability, opportunity and need" nor been sentenced to any imprisonment for a criminal offence--all to be determined by a local pension committee with appeal to the central pension authority--shall receive a pension of five s.h.i.+llings a week when his annual means do not exceed twenty-one pounds, that is, thirteen pounds a year, down to one s.h.i.+lling a week when they exceed twenty-eight pounds seventeen s.h.i.+llings six pence.

The New Zealand law is more intelligent. It extends old-age pensions to every person over the age of sixty-five who has resided thirty-five years in the colony and not been imprisoned for a criminal offence, nor has abandoned his wife, nor neglected to provide for his or her children. It does not, however, appear that any previous employment is necessary. The pension amounts to eighteen pounds, say ninety dollars, a year and is not given to any one who has an income of fifty-two pounds a year. The machinery of the law is largely conducted through the post-office and the entire expense is met by the state. That is to say, there is no contribution from the laborers themselves.

Austria, Italy, Norway, and Denmark in 1901 had also state insurance systems.

The minimum-wage idea has so far been attempted only In New Zealand and in Great Britain.[1] (See above, p. 160.) The New Zealand law of 1899 provided a minimum wage of four s.h.i.+llings per week for boys and girls, and five s.h.i.+llings for boys under eighteen, but the principle has been much extended by a more recent statute. The English law is not yet in active operation, and may or may not receive great extension. It provides in substance for the fixing of a minimum wage in the clothing trade or _any other_ trade specified by the Home Secretary. The obvious probability is that it will, as in New Zealand, soon be extended to all trades. This wage is to be fixed by a board of arbitrators with the usual representation given to each side, and it will doubtless work, as it does in New Zealand, for the elevation of wages, as such commissions rarely reduce them.

[Footnote 1: This, the Trade Boards Act, the 22d chapter of the ninth of Edward VII., enacted October 20, 1909, took effect January 1, 1910.

The act applies without specification to ready-made and wholesale tailoring, the making of boxes, machine-made lace and chain-making, and may be applied to other trades by provisional order of the Board of Trade, when confirmed by Parliament. The Board of Trade may make such provisional order applying the act to any specified trade if they are satisfied that the rate of wages prevailing in that trade is exceptionally low as compared with that in other employments, and that the other circ.u.mstances of the trade are such as to render the application of the act expedient; and in like manner they may make a provisional order providing that the act shall cease to apply to any trade to which it already was applied. Section 2 provides that the Board of Trade shall establish one or more trade boards for any trade to which the act is to be applied, with separate trade boards for Ireland. These trade boards (section 11) consist of members representing employers and members representing workers in equal proportions, and of certain appointed members. Women are eligible, and the representative members may be elected or nominated as the regulations determine. The chairman and secretary are appointed by the Board of Trade. Such boards are given power to fix minimum rates of wages both for time and piece work, which thereafter must be observed under penalty. There is further a machinery for the establishment of district trade committees. All regulations made by such Boards of Trade shall be laid as soon as possible before both houses of Parliament; but there does not appear to be any other appeal.]

Co-operation and profit-sharing, the great hope of the middle years of the nineteenth century, has made little progress in England or the United States since. Such successful experiments as now exist consist princ.i.p.ally in offering to the employees the opportunity to buy the stock of the company at a reasonable rate, as in the case of the Illinois Central Railroad and the United States Steel Company. Many mills, however, give a certain increase in wages at the end of regular periods proportionate to the profits. This technically is what we call profit-sharing. The word "co-operation" should be reserved for inst.i.tutions actually co-operative; that is to say, where the employees are partners in business with the employers. Of such there are very few in the United States, although there are quite a number in England. In 1901 there were only nineteen co-operative establishments in the United States, most prominent among which are the Peacedale Woolen Mills in Rhode Island; the Riverside Press in Cambridge; Rand, McNally & Co., Chicago; the Century Company, of New York; the Proctor & Gamble Soap Co., of Cincinnati; the Bourne Mills, of Fall River, and the Pillsbury Flour Mills, of Minneapolis. Yet these inst.i.tutions are really profit-sharing rather than co-operative, for the return is merely an extra cash dividend to employees who have no voice in the management. Mr. Oilman in his book, "A Dividend to Labor," tells us that there are thirty-nine other cases at least where profit-sharing once adopted has been abandoned. On the other hand, in Great Britain there were in 1899 one hundred and ten important co-operative productive establishments. There are many more on the Continent.

Arbitration laws are also far more developed and successful in European and Australasian countries than in Great Britain or the United States, although the first English act concerning arbitration was pa.s.sed as early as 1603. In the first year of Queen Anne, 1701, was the first act referring specially to arbitration of labor, and the next, Lord St. Leonard's act, in 1867, which attempted to establish councils of conciliation, something after the pattern of the French _conseils de prudhommes_; but in 1896 these acts were repealed and the Conciliation Act of the 59th Victoria, chapter 30, subst.i.tuted. It provides that the boards of arbitration may act of their own motion in so far as to make inquiry and take such steps as they deem expedient to bring the parties together, and upon application of either side may appoint a conciliator, and on the application of both sides, appoint an arbitrator. Their award is filed of record and made public, but no provision is made for its compulsory enforcement. In France, the legislation is much more intelligent. There the distinction between individual and collective labor is clearly made and within recent years there is elaborate legislation for the settlement of strikes, disputes of the collective cla.s.s, which we will later describe. For the adjustment of individual disputes, France has long had in her _conseils de prudhommes_ a special system of labor courts that const.i.tutes one of her most distinctive social inst.i.tutions.[1] These are special tribunals composed of employers and workingmen, created for the purpose of adjusting disputes by conciliation if possible, or judicially if conciliation fails. Appeal from their decisions is made to the tribunals of commerce. The first such council was created in Lyons in 1806, but since they have spread through all France. When the amount involved does not exceed two hundred francs, the judgment of the council is final; above that sum an appeal may be made to the tribunal of commerce. The most important element of all, perhaps, is that these councils have to some extent criminal powers, or powers of punishment. They can examine the acts of workingmen in the industries under their jurisdiction tending to disturb order or discipline, and impose penalties of imprisonment not exceeding three days, having for this concurrent jurisdiction with the justices of the peace. Elaborate arbitration laws also exist in France, and whenever any strike occurs, if the parties do not invoke arbitration the justices of the peace must intervene to conciliate. Still there is no compulsory arbitration except by agreement of both sides.

[Footnote 1: See the author's Report to the U.S. Industrial Commission, vol. XVI, page 173.]

Similar laws exist in Belgium, Switzerland, Germany, Austria, Holland, New Zealand, Australia, and Canada.

The apprentice system still exists in perfection in all European states, including Great Britain, although there most of the unions restrict the number that may be employed. In the United States it has, unfortunately, fallen entirely into disuse.

It has already been mentioned that the factory laws, laws regulating the sanitary conditions, etc., of factories and sweat-shops, are far more complicated and intelligent upon the Continent, and even in England, than in the United States of America.

Coming finally to what most persons consider the most important line, that of strikes, boycotts, and intimidation, the legislation of the Continent of Europe where common-law principles of individual liberty do not interfere, is, of course, far more complex and far more effective than that of either England or the United States. The principle of combination we leave for the next chapter. In European legislation, where we are met with no const.i.tutional difficulties, we shall expect to find a more paternalistic control by the state, although in France the decree of March 2, 1791, provided that every person "shall be free to engage in such an enterprise or exercise, such profession, art or trade, as he may desire." In Germany an elaborate attempt has been recently made to re-introduce the old guild system made over from its mediaeval form to suit modern conditions, and in other countries where the government does not interfere, the trade guilds, or unions, present insuperable obstacles to any one engaging in their industry who is not a member of the guild or has not gone through the required apprentices.h.i.+p.[1]

[Footnote 1: U.S. Industrial Commission Reports, vol. XVI, p. 9.]

The French decree of 1791 freeing labor took effect also in French Switzerland. A most interesting account of the experiment of the Swiss Cantons on freedom of labor and the guild system will be found in the U.S. Industrial Commission Report above referred to.[1] Germany differs from England and France in that the old guild system was never absolutely done away with; in 1807 serfdom was abolished in Prussia, and a decree of December, 1808, apparently under the influence of Napoleon, proclaimed the right of citizens freely to engage in such occupations as they desired. Exclusive privileges and industrial monopolies were abolished by subsequent decrees, and the general movement for the freeing of industry was consummated in 1845 by the labor code of that year, which, by the labor code of 1883, extends over all Germany: "The practice of any trade is made free to all....

The distinctions between town and country in relation to the practice of any handicraft trade is abolished.... Trade and merchant guilds have no right to exclude others from the practice of any trade.... The right to the independent exercise of a trade shall in no way depend upon the s.e.x...."[2]

[Footnote 1:_Ibid_., p. 10.]

[Footnote 2: _Ibid_., pp. 11 and 12.]

It will be seen that the more enlightened European countries arrived, under the influence of Napoleon probably, or the French Revolution, in the early part of the last century, to the point of specifically adopting the English common law of liberty of labor and trade which "organized labor" seems already desirous of departing from; but the German Civil Code goes on to say (Section 611): "By the contract of hiring of services the person who promises service is obliged to render the promised service, and the other party is obliged to the payment of the salary or wage agreed upon. All nature of services may be the subject of the service contract." It would seem, therefore, that the contract may be specifically enforced. So, in France, by the law of 1890, "A person can only bind himself to give his services for a certain time or a special enterprise. The hiring of services made without a fixed duration can always cease at the wish of one of the contracting parties. Nevertheless, the cancellation of the contract at the wish of one only of the contracting parties may give rise to damages." It would appear, therefore, that definite contracts may be specifically enforced, Austria has somewhat similar laws, although a larger proportion of industrial employment is subject to state regulation, and here no employer can employ any workingman without a book or pa.s.sbook, which serves both as identification and record.

Generally in Europe the use of a written contract in labor engagements is far more usual than with us. This, perhaps, makes it easier to enforce such contracts specifically. Nevertheless, I find no specific statute on the subject. Indeed, the Code Napoleon adopts the English law and provides[1] that "every obligation to do or not to do resolves itself into damages in the case of non-performance," while the modern English law act of 1875 provides a special and summary remedy in the county courts for labor disputes whereby when the contract is not rescinded the court may award damages or take security for the performance of the labor contract itself. This, however, does not include domestic servants. Both France and Belgium copy the common law as to slavery, requiring contracts to be for a certain time or a determined work. In Russia, however, contracts may be made for five years.

[Footnote 1: _Ibid_., p. 64.]

It is still true that no European country outside of Turkey has yet fixed by law the amount of wages in private employments or the minimum amount, though that result is effected by the machinery of arbitration in Great Britain and New Zealand. Continental countries, however, universally legislate as to hours of labor even of adult women, there being no const.i.tutional principle protecting their personal liberty in that particular, although in Belgium and Great Britain the laws do not, as a rule, apply to adult male labor. The hours are generally eleven or twelve, instead of eight or nine as in England or the United States. There is elaborate special regulation of times and conditions in labor in railways, laundries, bakeries, etc. The English law generally divides persons, according to their age, into three cla.s.ses, adults, young persons (from fourteen to eighteen), or children, and the system is most elaborate. Generally no children under the age of eleven may be employed at all.

Sanitary and social regulations are far more intelligent than ours.

Generally, the employment of women in factories within four weeks after childbirth is forbidden; and in Switzerland it is forbidden to employ pregnant women in certain occupations dangerous to the health of posterity. The German Civil Code declares that "A married woman has both the right and the obligation of keeping house. She is obliged to attend to all domestic labor and the affairs of her husband in so far as such labor or occupation is usual according to her social condition. She is supreme within her sphere, or at least has power to act or bind her husband in domestic matters, and he cannot limit her powers without a divorce. He may, however, annul any contract made by her for her personal labor with a third party."[1]

[Footnote 1: _Ibid_., p. 53.] [Footnote 2: _Ibid_., p. 77.]

The anti-truck and weekly-payment laws exist in all countries.

Europe generally, particularly Great Britain and the Roman Catholic countries, are handicapped by an infinity of holidays. In Roman Catholic countries they are generally single days, saints' days, etc., scattered throughout the year, but in Great Britain no skilled laborer will work at all for some weeks at a time.

The English law against intimidation is the model of the New York statute and most others. It defines in great detail what intimidation is--substantially, that it is violence or threats, the persistently following, the hiding of tools, etc. or the watching or besetting the house or place of business--and menaces, as well as actual violence, are recognized as unlawful and punishable by imprisonment, in Germany, Italy, Sweden, and other countries. Germany and Austria copy the English common law as to enticing from service.

There is as yet, however, no evidence in Europe outside of Great Britain of the American tendency to make a special privileged cla.s.s of skilled or industrial labor. So far as appears, there is no special legislation in any European country which is concerned particularly with the legal or political rights of industrial laborers.[2] There is much more co-operation and sympathy between employers and employees, at least in Continental countries, and possibly for this reason co-operation has proved far more successful.[1] State labor bureaus, state insurance, saving banks, and employment agencies are almost universal throughout the Continent.

[Footnote 1: See Oilman's "A Dividend to Labor," Boston, 1899. Jones's "Cooperative Production," Oxford, 1894.]