THE PROBLEMS OF LABOR LEGISLATION UNDER OUR FEDERAL CONSTITUTION.*

BY FREDERICK N. JUDSON.

THE LABOR QUESTION.

"Labor legislation," in its narrower sense of legislation directly affecting the relations of employer and employee, is the direct outgrowth of modern industrial conditions. When our Federal Constitution was adopted, the labor question in any modern sense was unknown in the United States, in England, or on the Continent of Europe. In England the Statute of Apprentices, enacted in 1564, in the reign of Queen Elizabeth, whereunder wages were fixed by the magistrate, was not repealed till 1814. The advanced thinkers of that time (that is, of the early years of the nineteenth century), imbued with the philosophy of Adam Smith and his followers, and including those who had the interests of the working class most at heart, believed that the removal of medieval restrictions was all that was needed for the welfare of mankind. In France the abolition of the medieval guilds was one of the first steps in the Revolution; and this, enacted against the opposition of the privileged orders, was welcomed by the Parisian workmen as the dawn of a happier day. It was at this time that the inventions of Hargrave, Arkwright, and Watt led speedily to the revolution of the manufacturing industries of the world. The introduction of machinery driven by steam and the consequent concentration of great manufacturing plants and the division of labor established the so-called factory system; and the trend to combination under the facilities afforded by corporate organization, which has had such tremendous influence in recent times, is too familiar to need recital.

The abolition of the medieval restrictions, while necessitated by the industrial development, did not realize the sanguine anticipations of the betterment of the conditions of the laboring

* Reprinted from the Proceedings of the Third Annual Meeting of the American Association for Labor Legislation, Metropolitan Building, New York. The Association for Labor Legislation is a non-partisan, scientific organization, interested in securing greater care and greater uniformity in protective labor legislation.

masses. In the fierce and unregulated competition which followed, a few of the laboring class of exceptional capacity rose to the position of employers; but the masses were depressed under the new conditions of concentrated industry. The unregulated employment of women and children resulted in abuses. which shocked the people and brought about the beginning of the so-called Labor Legislation. The Factory Acts, under the leadership of Lord Shaftesbury, established the principle not only for England, but for the civilized world, that the plane of human competition should be elevated by the State control and regulation of the employment of women and children. The labor legislation of England, indeed of Continental Europe, as well as the States of this country, has advanced far beyond this. It has come in modern times to include any statute which in any way affects the labor contract; that is, the relation of the employer to the employed. It has extended to the specific regulation of certain hazardous employments, the length of the day's work, the sanitary condition of workshops and mines, with inspection by public authority, the prohibition of prison labor in competition with outside labor, the regulation of the time of payment of employees, and the preference of labor debts in case of insolvency of the employer. In England, early in the century, the so-called conspiracy acts which interfered with the rights of the workingmen by combination to better their own condition were repealed. In more modern times, in this country, we have had a demand for legislation abridging the right of the employer in the regulation of the condition of labor, and for the exemption of laborers from statutes enacted against combinations in industry. In England, recently, labor unions have been relieved from liability for injuries inflicted by strikes.

EMPLOYER'S LIABILITY.

But the latest development of labor legislation is in relation to the employee's right to compensation for injuries suffered in the hazards of his employment. Under the rule of the common law the employer is responsible to his employee when the injury results from his own negligence, but not where the injury results from the negligence of another employee in the common service. The fellow-servant rule was not recognized on the

Continent of Europe, but became established in our common law at the very time that the introduction of the factory system revolutionized the conditions of employment.

Under modern conditions it has become impossible for the workman to protect himself against negligence of his fellowservant in another department of the common business, and this anomaly has resulted in modifications of the common employment rule in favor of the employees both by judicial decisions and by statute. The minute subdivisions of labor in the great centralized establishments of modern times and in our great railroad systems, and the introduction of complicated power-driven machinery, where a great number of employees are employed in different branches of one industry, have involved a vast increase of hazard to the workman and have created conditions as far as possible removed from the comparatively simple relations existing when the fellow-servant rule was first understood. The elimination of the personality of an individual employer, and the all but universal substitution therefor of an impersonal corporate control in industrial enterprise, have had far-reaching results in the relation of employer and employee.

The defence of common employment, as is well known to lawyers, is not looked upon with favor by juries, and it is materially modified in practice with different degrees in different jurisdictions by the so-called vice-principle rule, whereunder the negligence of the representative of the principle is not assumed by the employee, and by the so-called departmental rule, whereunder the fellow-servant's responsibility only extends to the same grade of employment, and by the further rule that the employer is responsible for his own negligence in not providing the necessary machinery and appliances of the employment.

These qualifications, however, have been found exceedingly difficult of application under the complicated conditions of modern enterprise. A large field is, therefore, left for the display of sympathies by juries, and subtleties by lawyers and courts, as to whether on the theory of negligence of the employer the employee can recover for injuries suffered in his employment. The results of this system are necessarily uncertain and expensive, and hence unsatisfactory both to the employer and

employee. The fellow-servant rule was all but abolished by the Act of Parliament in England in 1880, and it has been abolished or materially modified in several of the States of this country. The Employer's Liability Act enacted by Congress, both that of 1906, which was held to exceed the power of Congress, and that of 1908, in effect abolished the fellow-servant rule and introduced the doctrine of contributory negligence, whereunder it is left to the jury to determine how far the negligence of the employee contributes to the injury. The liability of the employer, however, in these acts is based distinctly on the principle of negligence.

COMPENSATION IN ENGLAND AND GERMANY.

England and Germany, and we can say the Continental countries in general, have gone far beyond the United States in substituting the principle of compensation for that of negligence in this matter of injuries to the employees in the course of their employments. Thus in England, under a conservative government in 1897, the Workmen's Compensation Act was enacted by the British Parliament. This act provided for compensation to workmen killed or injured in the course of employment according to a fixed schedule, applicable in every case where the death or injury was not due to his own fault. The effect was to substitute for the liability in tort the principle of insurance by the employer of the safety of his employee, as one of the hazards of his business, on the same principle that the buildings and machinery of the business are insured by him against loss by fire or the elements. The old doctrine of contributory negligence is done away with, except in the case of serious or wilful misconduct of the employee. Contracting out of the act is not permitted unless with reference to some scheme of insurance approved by public authority. Later, by the Act of 1900, the provisions of this act were extended to agricultural and cognate employments.

On the Continent of Europe the same result has been effected under a somewhat different system—that is, in the compulsory insurance of workingmen by the employer. Mr. Holland, in his "Principles of Jurisprudence," summarizes the legislation on this subject by saying that the tendency on the Continent of Europe is to substitute a system of State insurance for any

direct liability of the master, either for negligence or under the implied contract of indemnity, and that the burden imposed on the employer by the assumption of this liability is met by insurance; that is, by insurance companies assuming the employer's liability.

The subject of compensation to employees for injuries is now being extensively investigated in this country, both by legislative commissions in certain States and by employers and employees. Though in effect adopted by some organizations through private contract, it has not yet been adopted by statute in any State, though the principle, as will be shown later, has been adopted by Congress in relation to employees of the Federal government.

SOCIAL BETTERMENT LEGISLATION.

The term "labor legislation," however, has a broader application in the purpose of this Association for Labor Legislation than immediate relation of employer and employee. In this broader sense the term includes all so-called social betterment legislation, which finds its inspiring impulse in the humanitarian sympathies of our time and aims to use the powers of government to elevate, as far as may be, the poor and unfortunate; i.e., the submerged classes of industrial civilization. Legislation of this class is illustrated in several States of this country by the extension of our public school system to include industrial education, at public expense, in primary and secondary schools, as also compulsory attendance in schools. In England it has taken a much wider field and has included the purchase of lands for laborers, the housing of the working classes, the compulsory closing of shops at specified hours, the furnishing of meals to school children, and an elaborate system of old age pensions.

LABOR LEGISLATION IN UNITED STATES.

We have, under our Federal Constitution, a sovereign national government with (as Mr. Bryce classifies it) a rigid constitution reaching directly the individual citizen as to subjects of national concern, and forty-six sovereign States, each with its own rigid constitution. In the words of Chief Justice Marshall, each (the Federal and State government) is sovereign with respect to the rights committed to it, and neither