the odious system of tenement manufacture would long ago have perished in every trade in every city of the Republic." "Because the personal liberty of a workingman would be interfered with, if his employer were prohibited from requiring him to work at home, the unhappy dwellers in the tenements have seen their homes invaded by all manner of materials, from tobacco leaves and stems, to the bales of paper and tubs of paste required in making paper bags, and by three sets of inspectors." "For the convenience of the powerful, the weakest industrial factors in the community . have been invaded by industry and inspectors. In the face of such conditions the court, it will be remembered, insisted that the law intruded upon the right of the tenement house owner to have his property used in this manner if he wished, and also intruded upon the sacred right of the cigar maker not to be forced by an act of the legislature "from his home and its hallowed associations and beneficent influences to ply his trade elsewhere." Many of the facts brought out by the investigation of conditions in bake shops are still fresh in mind. Yet following that investigation came the final decision of the Supreme Court of the United States reversing the decision of the New York court of appeals and declaring the provisions of the law to be unenforceable so far as the hours of labor are concerned. It is encouraging to note that in the latter case far greater attention was given to conditions than in the former. Yet in that case one may read such expressions as the following, in addition to the declaration that personal liberty had been invaded by the statute. "Statutes of the nature of that under review, limiting the hours in which grown and intelli Some Ethical Gains Through Legislation, pp. 231, 239, 245-246. gent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual." "It may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding the trade of the baker has never been regarded as an unhealthy one. Very likely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health." "The bakers' vocation is one that has existed practically in all ages and in all countries. . . It has never been supposed that it was a trade or vocation that was or might be dangerous to health." "The claim that the compounding of these constituents, so prepared, in the business of a baker, is an unhealthy occupation, will surprise the bakers and good housewives of this state," closing with the touching allusion to the "avocation of the family baker, engaged in the necessary and highly appreciated labor of producing bread, pies, cakes, and other commodities more calculated to cause dyspepsia in the consumer than consumption in the manufacturer." The growing importance of conditions may be shown by reference to the form of statement that experience has demonstrated to be necessary in order that a statute might be effective. Take, for example, the legislation in New York state for the regulation of the hours of labor. In 1867 the law read, "Eight hours of labor, between the rising and setting of the sun, shall be deemed and held to be a legal day's work, in all cases of labor and service by the day, where there is no contract or agreement to the contrary." In 1870, with the extension. of the measure so as to include laborers for the state, it read, "eight hours shall constitute a legal day's work for all classes of mechanics, working men and laborers, excepting those engaged in farm and domestic labor; but overwork for an extra compensation by agreement between employer and employee is hereby permitted." The outcome of such legislation was inevitable. So long as the way was open for an agreement to work for longer time, the law was virtually a dead letter. Realizing that to be the case, labor organizations began to appeal to the legislature for assistance in making agreements. They wished to contract for a shorter day than the employer was willing to accept. Having the advantage that will normally fall to the employer, he was able to dictate a longer day than was acceptable to his workmen. In order that this result might be prevented, the legislature was induced to enact in certain instances where conditions seemed to require it laws into which were inserted the words "require or permit". These words have been in many cases a stumbling block to the courts. The employer, it seemed to them, might in certain cases be prohibited from requiring his employees to work long hours, but certainly any one who wished to work should not be prohibited. In fact, such a privilege has been all that employers have needed in order that they might accomplish all that they desire. With the unequal bargaining power that characterizes the situation it has been but a slight matter for the employer to induce the worker to wish to work for any length day that satisfied the employer. The mere matter of posting a notice to the effect that no one was required to work longer than the required number of hours, thus throwing the responsibility on the workmen, and then letting it be generally known that the employer could not use any one who did not wish to be permitted to work for longer hours:that was all that was necessary. The courts came to the assistance of the employers with the doctrine of personal liberty and the employer's work was done. The entire force of the statute was in the word "permit". Without it the law was of no consequence whatever. With it the law was of importance in actually tending to equalize the conditions of bargaining. Overlooking the importance of such a development, the Supreme Court of the United States held "The mandate of the statute, that 'no employee shall be required or permitted to work' is the substantial equivalent of an enactment that 'no employee shall contract or agree to work', more than ten hours per day; and, as there is no provision for special emergencies, the statute is mandatory in all cases. It is not an act merely fixing the number of hours which shall constitute a legal day's work, but an absolute prohibition upon the employer permitting, under any circumstances, more than ten hours' work to be done in his establishment. The employee may desire to earn the extra money which would arise from this working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it." "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." The efforts of organized labor to discourage overtime work has much behind it that is in no way connected with what is often called the greed of the worker. The importance in which this matter is held is seen in a resolution adopted by the American Federation of Labor, recorded in the American Federationist." "We advise strongly against the practice which now exists in some industries of working overtime, beyond the establishLochner v. People, 198 U. S., 45. 'Vol. 4, p. 187. ed hours of labor. It is an instigator of the basest selfishness, a radical violation of union principles, and it tends to set back the general movement for an eight hour day." From the report of the Committee of One Hundred,8 writing under the general heading, "Things which need to be done" we may read the statement: "In industrial and commercial establishments employers may greatly aid the health moveby providing. physiological (generally shorter) hours of work." ment Another instance of this tendency is brought to light in the Report of the Anthracite Coal Strike Commission." The law of 1875, requiring payment by weight for coal mined, added the following: "Provided, That the provisions of this act shall not apply to or embrace any persons, partnerships, associations or corporations, that may or shall by any contract, agree with his or their miners in any of said mines or collieries, otherwise than as is provided in this act, for the compensation of mining the same, and no penalty provided therein shall apply to such persons, partnerships, associations or corporations so contracting or agreeing." The Report added, "It may seem strange, but from all the evidence before the Commission the undoubted fact appears to be, that the requirements of this law have never been complied with. It is alleged by the counsel for the operators, that they have never been applicable, for the reason that the situation came within the purview of the last proviso of the section quoted, which exempts from its provisions all cases where the employer shall, by contract, agree with his miners, otherwise than is provided in the said statute, for their compensation." 8 Bulletin 30, Being a Report of National Vitality, p. 128. |