Full text of Some Ethical Gains Through Legislation

The full text on this page is automatically extracted from the file linked above and may contain errors and inconsistencies.

T H E

CITIZEN'S

LIBRARY

OF

E C O N O M I C S , POLITICS, A N D
S O C I O L O G Y

E D I T E D BY
RICHARD

T. E L Y , P H . D . , LL.D.

PROFESSOR OF POLITICAL ECONOMY,
UNIVERSITY OF WISCONSIN

SOME

ETHICAL

T H R O U G H

GAINS

LEGISLATION

T H E

C I T I Z E N ' S L I B R A R Y OF E C O N O M I C S ,
POLITICS, A N D S O C I O L O G Y

12mo.

HaltLeather

$1.25net,each

MONOPOLIES AND TRUSTS. By RICHARDT. ELY,PH.D.,LL.D.
THE ECONOMICS OF DISTRIBUTION. ByJohnA.Hobson.
WORLD POLITICS. By PaulS. REINSCH,Pa.D.,LL.B.
ECONOMIC CRISES. ByEDWARDD. Jones,Ph.D.
OUTLINES OF ECONOMICS. By RICHARDT. ELY.
GOVERNMENT IN SWITZERLAND. By John MARTIN VINCENT,
PH.D.
ESSAYS ON THE MONETARY HISTORY OF THE UNITED
STATES. By CHARLES J.BULLOCK,PH.D.
SOCIAL CONTROL. By EDWARDA.Ross,Ph.D.
HISTORY OF POLITICAL PARTIES IN THE UNITED STATES.
By JESSEMACY, LL.D.
MUNICIPAL ENGINEERING AND SANITATION. By M. N.
BAKIR,På.B.
D E M O C R A C Y AND SOCIAL ETHICS. By JANEADDAMS.
COLONIAL GOVERNMENT. By PAUL S.Reinsch,Ph.D.,LL.B.
AMERICAN MUNICIPAL PROGRESS. ByCHARLESZUEBLIN,B.D.
IRRIGATION INSTITUTIONS. By ELWOODMEAD,C.E., M.S.
RAILWAY LEGISLATION IN THE UNITED STATES.“ By BAL
THASARH. MEYER,PH.D.
STUDIES IN THE EVOLUTION OF INDUSTRIAL SOCIETY.
By RICHARDT.ELY,PH.D.,LL.D.
THE AMERICAN CITY. ByDelosF.Wilcox,PH.D.
MONEY. ByDavidKinley,PH.D.
THE FOUNDATIONS OF SOCIOLOGY. ByEDWARDA. Ross.
THE ELEMENTS OF SOCIOLOGY. By Frank W. BLACKMAR,
Pr.D.
COLONIAL ADMINISTRATION. ByPAUL S.REINSCH.
AN INTRODUCTION TO THE STUDY OF AGRICULTURAL
ECONOMICS. By HENRYC.TAYLOR,M.S.AGR.,Ph.D.
SOME ETHICAL GAINS THROUGH LEGISLATION. By FLOR
ENCI KILLEY.

T H E

MACMILLAN COMPANY
64-66 FIFTH AVENUE
N E W YORK

THE

S o m e

CITIZEN'S L I B R A R Y

E t h i c a l

T h r o u g h

G a i n s

L e g i s l a t i o n

BY
FLORENCE

KELLEY

GENERAL SECRETARY
OF THE NATIONAL CONSUMERS LEAGUE

P e w York
THE MACMILLAN C O M P A N Y
L O N D O N : M A C M I L L A N & CO., LTD.
1910
Allrights reserved

ky

R e p l i c a n a , 1 5 4 2 2 0
COPYRIGHT,1905
BY THE MACMILLAN COMPANY
SetupandElectrotyped.
PublishedOctober,1905
ReprintedJuly,1910

GIFT

P a c i e

V

I

OF

N

G

A

D

THE Mason-HENRYPRESS
Syracuse, New York.

O

C. .

.

M L 0 3 8 6 9

PREFACE
T h e substance of this volume has grown out of
the writer's experience as special agent for the
Bureau of Labor Statistics of Illinois for an inves
tigation of the needle-trades in the tenements of
Chicago,in 1892;as Chief Inspector of Factories of
that state from 1893 to 1897; as agent in charge of
the Chicago division of the investigation of the
" Slums of Great Cities” for the Department of La
bor at Washington; and as Secretary of the Na
tional Consumers' League from 1899 to the date of
publication; but chiefly as a resident for thirteen
years beginning in 1892, first at Hull-House in
Chicago and afterward at the Nurses' Settlement
in N e w York. Lest it seem strange that one of
the laity should discuss statutes and the decisions
of courts of last resort, it m a y be well to state that
the writer has for m a n y years been a m e m b e r of the
bar of Illinois.
T h e subject matter has been presented in part to
the students of several universities and colleges; and
published, also in part, in the Annals of the A m e r i
can A c a d e m y of Political and Social Science, the
American Journal of Sociology, the Chautauquan
and Charities, to which acknowledgment is due for
courteous permission to reprint. Thanks are due
also to the West Publishing C o m p a n y for the text
vii

PREFACE
ofdecisions; and to patient friends whose searching
criticism has led to m a n y modifications both of s u b
stance and form .
While the present volume was in press, Mayor
D u n n e of Chicago appointed to the Board of Ed
ucation of that city, Miss Jane A d d a m s of Hull
House, Mrs. E m m o n s BlaineandDr. Cornelia De
Bey. It remains to be seen h o w far these able and
public spirited citizens m a y disprove the argument
advanced in chapter V.
That portion of this book which is of permanent
value is to be found in the appendices. These are
c o m m e n d e d to the careful attention of the reader
because, withouta full understanding of the judicial
decisions thus brought together, it is impossible to
comprehend the difficulties which have been over
come in the sadly incomplete process of freeing the
conscience of the purchasing public from participa
tion in gross industrial evils; and to estimate justly
the obstacles which still beset the path of the g r o w
ing body of citizens of the Republic w h o elect to
pursue this discouraging yet indispensable line of
civic duty, the permanent establishment of ethical
gains through legislation.
FLORENCE KELLEY.
N E W Y O R K , SEPTEMBER, 1905.

viii

C O N T E N T S
CHAPTER I
T H E RIGHT TO CHILDHOOD
Young Children Working in Tenement Houses
Young Children in Domestic Work
Children in Street Occupations
Telegraph and Messenger Boys
Children in Retail Trade
Children in Manufacture
The Glass Bottle Industry
C H A P T E R II
T H E CHILD, THE STATE, AND THE NATION
Consequences of Recognition of the Child's Right
to Exemption from Work
Inter-State Aspect of the Right to Childhood
Legislation Needed in the Near Future
.
A United States Commission for Children
C H A P T E R III
T H E RIGHT TO LEISURE
The Unsought Leisure of Prosperous W o m e n
.
Enforced Idleness is not Leisure
Increased Speed Calls for Leisure
Methods of Establishing the Right to Leisure
C H A P T E R IV
JUDICIAL INTERPRETATIONS OF THE RIGHT TO LEISURE
The Rightto Leisure Accordedto Public Servants
The Right to Leisure of Wage-Earning W o m e n
and Children
The IllinoisDecision of 1895 (Ritchie vs. The
.
People)
The Rightto Leisure of workingmen
Trade Agreements and Statutes
ix

3
6
8
II
15
26
33
43
58
66
81
91
99
105
112
116
120
125
127
128
132
139
145
165

C O N T E N T S
CHAPTER V
The Right Or W O M E N TO THE BALLOT
Women's Opportunities on Public Boards and
Commissions
O
Need of W o m e n in Educational Work
Protection of Children in Colorado
Advantages of the Recognition of the Right of
W o m e n to the Ballot
Right of W o m e n to a Share in the Enactment of
Marriage and Divorce Laws
C H A P T E R VI
T H E RIGHTS OF PURCHASERS
Ignorance of Conditions of Production
Some Typical Purchasers
Efforts to Enlighten Purchasers
C H A P T E R VII
T H E RIGHTS OF PURCHASERS, AND THE COURTS
The N e w York Decision of 1884 (In re Jacobs)
The Development and Attempted Regulationof
the Sweating System
Trade Unions and the Union Label
Ethical Loss Through Lackof Legislation 0
APPENDIX I
CANTON COTTON MILLS vs. EDWARDS, SUPREME COURT
OF GEORGIA, JUNE 10, 1904
A P P E N D I X II
RITCHIE VS. THE PEOPLE, SUPREME COURT OF ILLINOIS,
MARCH 14, 1895
•
9
5

172
173
178
190
195
206
209
212
216
220
229
230
T
235
240
245

256

2

A P P E N D I X III
HOLDEN vs. HARDY, SUPREME COURT OF THE UNITED
280
STATES, FEBRUARY 28, 1898
A P P E N D I X IV
IN RE JACOBS, COURT OF APPEALS OF N E W YORK, JANU
306
ARY 20,1885
APPENDIX V
. 325
PURE FOOD BILL

S O M E
TH

R OU

E T H I C A L

GH

G A I N S

L E G I S L A T I O N

1

CHAPTER I

T H E R I G H T TO C H I L D H O O D
It is no part of the aim of this chapter to prove
that the right to childhood exists. That right fol
lows from the existence of the Republic and must
be guarded in order to guard its life which must
perish if it should ever cease to be replenished by
generations of patriots, w h o can be secured on no
other terms than the full recognition of the need of
long-cherished, carefully nurtured childhood for all
the future citizens.
The purpose of this chapter is simply to indicate
certain instances in which, the right to childhood
having been recognized, an ethical gain has been
achieved, and farther gains m a y be accomplished.
The noblest duty of the Republic is that of self
preservation by so cherishing all its children that
they, in turn, m a y become enlightened self-govern
ing citizens. The children of to-day are potentially ?
the Republic of 1930. As they are cherished and
trained, so will it live or languish a generation
hence.

The care and nurture of childhood is thus a

vital concern of the nation. For if children perish
in infancy they are obviously lost to the Republic as
citizens. If, surviving infancy, children are per
mitted to deteriorate into criminals, they are bad
3

S O M E

ETHICAL

GAINS

*citizens;:if they are left illiterate, if they are over
w o r k e d a n d deyitaized in body and mind, the Re
public saffersthepenalty of every offense against
childhood.
An unfailing test of the ethical standards of a
community is the question, " W h a t citizens are be
ing trained here?”
W h e r e young children die by thousands, the eth
ical standards of the community are, so far, bad.
For science has long shown h o w to minimize infant
mortality. The failure of a community to follow
the teachings of science in this direction is a moral
dereliction of the gravest character. The death
from preventable disease of thousands of young
children in the tenement houses of the city of N e w
York, occurring year after year, from generation to
generation, stamps the ethical standards of the me
tropolis as bad beyond belief.

For the exposure of

infants on the highways of China is not more obvi
ous to the people of China, than the preventable
mortality of infants in N e w York City has for years
been obvious to the people of the United States. It
is, moreover, one of the incredible things of our
civilization that this excessive infant mortality, from
generation to generation, is left to local boards of
health and to local philanthropies, whose inability to
cope with it its persistence has long conspicuously
proved.
The legislation of the last few years, intended to
secure improved housing for the people of N e w
York City, although it is still wholly inadequate,
constitutes one of the fundamental ethical gains of
4

THE

RIGHT

TO

C H I L D H O O D

our generation. For it marks the beginning of that
social protection of infant life without which the
right to childhood is illusory; and for want of which
thousands of potential citizens in the great cities
have, within the last half century, been lost to the
Republic.
It would seem at first glance to be a universally
acknowledged right of the h u m a n being to receive
during the first months of life food, clothing, shelter
and nurture without even passive coöperation on its
o w n part beyond swallowing food, wearing clothing
and sleeping in a quiet, w a r m , clean place. Yet
within one generation it has been necessary to en
force with fines and imprisonment, statutes and or
dinances for the purpose of stopping large numbers
of infants less than one year old from being used to
contribute to the income of their owners by being
exposed in the arms of begging w o m e n upon the
streets of the great cities. The colder the night and
the later the hour, the more overwhelming the ap
peal to the pity of the passer-by and the greater the
pecuniary value to its owner (not by any means
always its mother), of such an instrument for secur
ing income.
Before the enactment of the statute which put an
end in N e w York City to this misuse of infants, a
belief was current that, if the public should cease to
contribute to their support, starvation might be the
alternative for both w o m a n and child. But w o m e n
and infants do not starve in N e w York.

The s u p

pression of this exploitation of infants is a clear gain
for the moral sense of the community, not only be
5

S O M E

ETHICAL

GAINS

cause the lives and health of the babies are p r o
tected, but because a perverted and unwholesome
outlet for unreasoning pity is cut off, and a higher
form of reasonable care for childhood is substituted
therefor.
Following babyhood, the years from the first to
the seventh birthday are so far held sacred to sleep,
play and rapid growth that most states exempt chil
dren during this period from compulsory attendance
at school. The belief is generally held, that the
strain of school life is excessive for the health and
welfare of so m a n y children at this age as to make
compulsion of doubtful public benefit.
Y o u n g Children working in T e n e m e n t Houses.
- Y e t , in the spring of 1903, a kindergartner in
N e w York City, on missing from her class an
Italian brother and sister aged four and five years,
and visiting them in their homes, was told by their
mother that they could not be spared from their
work to go to the kindergarten. They were en
gaged in wrapping colored paper around pieces of
wire, to form the stems of artificial flowers which
the family manufactured in their tenement home,
the older sisters making the leaves and petals, and
the other members of the group forming whole
flowers and sprays.
.
The children were pointed out to the attendance
agent w h o explained that, even under the statute of
1903, the compulsory attendance law exempted the
younger child for three years and the older for two,
assuming that each would then enter school on
reaching the seventh birthday.
6 .

The

factory in

THE

RIGHT

TO

C H I L D H O O D

spector, when the facts were brought to his atten
tion, observed that the case did not appear to consti
tute a violation of the factory law, since the children
were not receiving wages, and the group at work
did not exceed the number authorized under the
license to manufacture artificial flowers in their ten
ement home.
The question then arose whether such employ
ment constituted cruelty under the statutes of N e w
York. The danger attending taking the children
and their parents into court upon a charge of cruelty
was, that it might be found that this parental ex
ploitation of young children within the h o m e did
not technically constitute cruelty in the judicial
sense; and such a decision might then be construed
by the colony of artificial flower makers as approval
of similar employment of small children upon a
scale even larger than at present. O r , such employ
ment might be held to constitute cruelty, the chil
dren might be removed from the custody of their
parents and sent, perhaps at the cost of the city, to
one of the subsidized sectarian institutions, and a
whole new series of hardships thus caused, not less
grave than those already suffered by the children.
Such exploitation of very young children within
the family circle is practised whenever manufacture
in tenements is tolerated. These children are types
of employees in N e w York, Chicago, Philadelphia,
and all other cities in which tenement dwellings are
turned into workshops. This form of domestic
overwork of little children can be eliminated by the
effective prohibition of manufacture in the tene
7

I

1

S O M E

ETHICAL

GAINS

ments (a measure sure to be enacted within a few
years in the interest of the public health) and in no
other way. Until this prohibition is enacted and
enforced, there will be, wherever the needle-trades
and other industries are carried on in homes, vir
tually no lowest limit above the age of three years
for the employment of children in families. For
children can pull out basting threads, sew on but
tons, paste boxes and labels, strip tobacco and per
form a multitude of simple manipulations as readily
as they can learn the kindergarten occupations.
In Boston, the rigorous enforcement of the licens
ing-laws applied to homework has partially re
stricted this form of exploitation of young children;
and has revealed the interesting fact that the ethical
standard of the peopleof Massachusetts is higher in
two important respects than that attained by other
manufacturing communities. For the young chil
dren are incomparably better protected against do
mestic overwork by the partial restriction of m a n u
facture in homes; and the officials appointed to
watch over tenement-house manufacture are the
only ones in the United States w h o k n o w from ten
years of experience that they are in no danger of
being removed from office because of faithful per
formance of their arduous and often dangerous
work.
Y o u n g Children in Domestic W o r k . - F a r more
difficult to reach by statute is the oppression of little
girls under the burden of household drudgery at
cost of school attendance. The Little Mothers' As
sociation registers one of the bitter ironies of child
8

THE

RIGHT

TO

C H I L D H O O D

life in N e w York City. The girls whose dreary
lives it cheers are under the legal age for working
for wages. M a n y of them attend school just
enough to save their parents from the penalties at
taching to keeping a truant in the family, but so
irregularly that progress with the class is impossible
and school life is one long discouragement. For
these children, whose exploitation is largely due to
sheer parental shiftlessness and selfishness, that new
provision must in the long run prove a godsend
which n o w requires a child before beginning to
work for wages, to show that it has completed the
curriculum of the first five years of the public
schools and has, within the last preceding school
year, attended school one hundred and thirty days.
This measure places a premium, in the shape of
wage-earning capacity at the fourteenth birthday,
upon steady progress in school and, therefore, upon
regular attendance. W h e n this fact penetrates the
mindsof the parents, the " littlemothers" will doubt
less find less opposition at h o m e to their efforts to
escape from the baby, the washtub, and the scrub
bing brush, and to take refuge in the schoolroom.
The statute thus reënforces parental duty and
stays the pressure of drudgery upon defenseless
children within the family. Unfortunately, itis too
slight and indirect.

The " little mothers" need di

rect help and protection almost as m u c h as the tiny
makers of artificial flowers in the tenements. The
next step might well be the adoption of an objective
standard applied to the child herself. If it were
required that a girl must weigh eighty pounds and
9

S O M E

ETHICAL

GAINS

measure sixty inches in height, the test to be made
with scales and measuring rod in the school, besides
being able to read fluently and write legibly in the
English language, before leaving school, the danger
of oppression of little girls within the family circle
would be greatly reduced.
No modern community recognizes the old patria
potestas, the R o m a n right of the father to put his
child to death. But in the intimate circle of family
life there lingers deeply rooted the belief in the
right of either parent to exploit childhood for
money, or for personal relief from work by the s u b
stitution of the child in the performance of domestic
tasks. A n d the public conscience is slower to rec
ognize the need of intervention in this than in any
other form of cruelty.
With the statutory prolongation of childhood in
the form of child labor laws, there emerges the need
of assuring to the children the practical benefit due
them with their legal immunity from work.

In the
Republic, childhood must be sacred to preparation
for citizenship. Hence the public schools offer in
struction in the interest of the community. But for
the children here under discussion, mere offering is
not enough. There must be compulsion incarnate
in the attendance agent. Through this official the
community enters the home, as it enters the w o r k
shop, the store and the factory, to enforce upon the
adult the child's claim to this high privilege. There
is no longer discussion with the parent as to the ad
vantage to himself accruing from the education of
10

THE
his child.

RIGHT

TO

C H I L D H O O D

The child's right has been recognized

and made a part of the life of the community.
This process of defending the child, by reason of
its future citizenship, from ignorance imposed by
the greed or thoughtlessness of parents has, since
1903, gone farther in the State of N e w York than
in any previous year or any other state.

For in

N e w York, under the statute of 1903, a child must
not only reach the fourteenth birthday and the
normal stature of a child of that age (so certified by
a special officer of the board of health appointed for
the purpose) before beginning work in manufacture
or commerce; it must also have been instructed in
reading, writing, spelling, English grammar and
geography, together with the fundamental opera
tions of arithmetic including fractions, and must
s h o w that it can read fluently and write legibly in
the English language.
An unforeseen and welcome result of this provi
sion is the immediate discovery on the part of m a n y
Italian and Russian immigrantfamilies that it is no
longer profitable to import half-grown and illiterate
young relatives from Europe; since such young
importations n o w require about two years of steady
attendance at school before they can be made pe
cuniarily profitable to their importers. Thus one of
the ugliest growths of the padrone system of i m m i
gration is quite incidentally cut off at the root by
the statutory protection of children from work
while they remain illiterate.
Children in Street Occupations.-Within c o m
paratively few years, little girls offered violets for
II

S O M E

ETHICAL

GAINS

sale in the streets of N e w York as they still offer in
the streets of m a n y cities flowers, pencils, chewing
g u m and other small articles. Thoughtless persons
encouraged them with gifts as well as purchases,
assuming perhaps starvation as the alternative to
this ruinous employment. N o w , happily, the penal
code prohibits under heavy penalty all employment
of this kind for girls under the age of sixteen years.
In the interest of morals and decency, self-support
by street-peddling is forbidden to girls six years
longer than newspaper-selling is prohibited to their
brothers, although the recent investigation of the
N e w York Child Labor Committee justifies the be
lief that a similar prohibition, on the same grounds,
is no less needed for boys.
A m o n g American cities, Boston, N e w York and
Buffalo are dealing systematically with very young
children working as newsboys. In all three cities
attempts are made to eliminate newsboys under the
age of ten years. Merely to state this would seem
to justify the effort and suggest farther restriction.
Yet, in 1903, a representative of the N e w York
Society for the Prevention of Cruelty to Children
appeared before the Senate committee sitting at
Albany, and protested against the enactment of a
measure which proposed to go one useful step
farther and extend the prohibition of street selling
to the twelfth birthday.
In m a n y cities, tiny newsboys m a y be seen on the
streets at any hour of the day or night. Wherever
the subject has not been closed by a prohibitive
statute, that perverted reasoning is still widely ac
I2

THE

RIGHT

TO

C H I L D H O O D

cepted which assumes, quite without foundation for
the assumption, a widowed mother or a disabled
father for every such diminutive worker, and un
hesitatingly places theburden of the decrepit adult's
maintenanceuponthe slender shoulders of the child.
Over against the prevalence of this unfounded as
sumption, the sweeping prohibition of street work
for children under the age of ten years registers a
distinct ethical gain.

It restores the burden of sup

port in early childhood to the parents or to the c o m
munity where it properly belongs.
A

case arising in N e w

York

City under the

“newsboy law” illustrates the point. A child was
arrested charged with offering to sell papers with
out wearing the badge required by law.

He

was

nine years and six months old. On the following
day several newspapers printed headlines of which
the following is typical: “ Tiny Breadwinner ar
rested for Selling Papers." Investigation showed
the father to have deserted his family, the mother to
have become insane, and the three children to have
fallen into the direst need.

Thanks to the "newsboy

law ,” immediate attention was drawn to them, the
mother was taken to a hospital, the children were
provided with homes, and the search for the absent
father was begun. Without the law, what would
have befallen the family? A n d what would be the
ethical standard of a community which allowed the
support of a family consisting of an insane w o m a n ,
a child younger than himself, and an infant, to de
volve upon a boy of nine years?
For more than one generation, it has been almost
13

S O M E

ETHICAL

GAINS

invariably assumed that there must be little n e w s
boys, and that they m u s t b e objects of charity. The
two facts, that they are regarded with surprise and
disapproval by European visitors w h o investigate
our educational theories and practise, and that the
street trades uniformly contribute a wholly undue
share to the population of our reformatories and
industrial, truant and parental schools, have been
ignored.
There have been newsboys' homes, lodging
houses, banks, and clubs; newsboys' picnics, public
dinners, treats and even, from time to time, a theat
rical performance for newsboys. The simple device
of prohibiting the work of tiny children and making
the privilege of selling papers on the streets, out of
school hours, depend upon the good behavior and
regular attendance of the candidate at school, reg
isters a marked gain in reasonable kindness of the
communities which have entered upon this humane
course of action.
The boys in N e w York, Boston and Buffalo, w h o
wear badges, indicating their right to sell papers,
are n o w school boys authorized by their parents and
the board of education to work, out of school hours,
until ten o'clock at night.

Every one of them is

vouched for by a parent or guardian whose name
and address is k n o w n to the board of education.
There are no waifs or strays a m o n g them .

They

are not legitimate objects of pity or of charity.
They are school boys in good standing. Just in
proportion as the newsboy law is enforced, can a
cheerful answer safely be given concerning them
14

T H E

RIGHT

TO

C H I L D H O O D

to the question, " W h a t kind of citizens are being
trained here?"
In these three cities, the next step will doubtless
be taken in the direction of raising the age for begin
ning work to twelve years and restricting the w o r k
ing day to the hours between seven in the morning
and seven at night. Ten o'clock at night is too late
for children under the age of fourteen years to be
at work upon the streets, and the law of Illinois
demonstrates that seven o'clock is a feasible limit
for the work of children under sixteen years in
manufacture and commerce. Surely it is not too
narrow a limit for children under fourteen working
in the streets.
Telegraph and Messenger Boys.- A similar
gain is greatly to be coveted for the telegraph and
messenger boys w h o share with the newsboys the
life of the streets and w h o have long been sur
rounded by the same sort of glamour in the public
mind. Carrying messages, like selling papers, has
seemed to the employing companies and to the
thoughtless public to be "boys' work," as distin
guished from men's work, because boys can do it,
and because they can be obtained more cheaply than
men.
The test of the work, however, should be not
whether boys can do it, but what it does to boys.
M a n y occupations are injurious to children almost
in proportion as they seem , from the commercial
point of view, fitted to the abilities of children.

To

twist colored paper around pieces of wire in the
manufacture of artificial flowers is within the power
15

S O M E

ETHICAL

GAINS

of a child of four years. A n d the labor of such
children can be obtained virtually gratis by the em
ployer under the system of manufacture in tene
ment-houses. This portion of the work seems,
therefore, to the employer to be properly “ children's
work ” not "women's work.” But to be kept
steadily at work at that simple manipulation is ruin
ous for the body and mind of a young child, and, in
the interest of the children viewed as future citi
zens, is to be utterly condemned and prohibited. In
the same way, a girl of ten years can carry a baby
in her arms, scrub a floor, and wash plain garments
quite clean.

But the girl w h o does nothing, all day

long, day after day, but hold a heavy baby and carry
it up and d o w n stairs in a tenement-house; or w h o
habitually lifts baskets of clothing, or kneels on a
d a m p floor, gets off easily if she escapes lifelong
curvature of the spine, or serious internal disorder,
or tuberculosis, that blight of the working children.
So the very out-of-door variety and facility of
the work of the messenger contributes to make the
work unfit for young lads, almost in proportion as
their youth, spryness and readiness to work for
small wages make them appear to the employing
company and the uncritical observer especially
adapted to the occupation.
Granted that one messenger or telegraph boy
in a great city m a y have risen to a post of responsi
bility just as one newsboy in a thousand m a y have
risen to distinction or to fortune, the public mind
has been far too ready to assume the carrière
ouverte aux talents for all these children ; and sadly
16

T H E

RIGHT

TO

C H I L D H O O D

slow to perceive the truth which the juvenile courts
are n o w revealing, that like the newsboys the m e s
senger boys have long furnished a large contingent
to the population of the truant-schools, the parental
schools, and the reformatories.
Every judge of a juvenile court, at an early stage
of his experience with delinquent boys, becomes im
pressed with the unfitness of work upon the streets
asmessengers and telegraph deliverers, for children.
A judge told the writer that one-third of all the de
linquent boys brought before him had, at one time
or another, served the public as messenger boys.
He

regarded this as the most injurious, from the

point of view of morals, of all the occupations open
to children. Every reformatory institution which
keeps adequate records of the previous history of
the boys committed to its care, can shed a flood of
light upon the demoralization of lads due to this
service upon the streets.
The attention of the writer was first drawn to the
injurious character of this occupation for young
boys by the experience of a lad w h o was taken into
service as amessengerin the morningand was sent,
at noon, to the post-office with $170 to buy stamps
for a great mail-order establishment. Intoxicated
by the possession of a s u m greater than he had seen
in all his lifewith its meager supplies of money, the
boy showed the notes to anotherlad upon the street,
w h o suggested that instead of going to the post
office, the messenger should go to the races. To
gether they spent the afternoon betting at the race
tracks. T h e following morning the messenger
2
-17

S O M E

ETHICAL

GAINS

passed from the ranks of the working children, in
which he had been enrolled for one ruinous day, to
those of the juvenile criminals recorded in the
county jail.
T h e temptation involved in handling precious
possessions not his o w n besets the messenger boy
throughout his career. A n d the contact with dis
reputable people is not confined to chance acquaint
ances upon the streets, but inheres in the work itself,
thousands ofmessages to such persons ofboth sexes
being delivered every year by young lads w h o are
constantly sent, in the way of business, to places of
the existence of which more fortunate children are
carefully kept in ignorance.

T h e judge w h o pre

sides over a justly famous juvenile court told the
writer that in hisopinion two-thirds of the messages
delivered after eighto'clock at night in his city were
carried by children to places of bad character.

Ac

cording to the penal code of N e w York messenger
boys m a y be sent to the door of places to which no
other child can be sent without involving the sender
in the danger of criminal prosecution. Surely c y n
icism can go no farther than this!
All the circumstances attending the work of tele
graph and messenger service render it especially
1One of the curiosities of legislation isthat provision of the
penal code of New York which reads as follows: Penal Code
-Sec. 292a (Laws 1893, Ch. 692): “ A corporation or person
employing messenger boys who knowingly sends or permits
anyperson tosend anymessenger boytoany disorderly house,
unlicensed saloon, inn, tavern or other unlicensed place, where
malt or spiritous liquors or wines are sold, on any errand or
business whatsoever, except to deliver telegrams at the door
ofsuch house,is guilty ofa misdemeanor,and incurs apenalty
of fifty dollars, to be recovered by the district attorney."
18

THE

RIGHT

TO

C H I L D H O O D

unfit for young, growing boys. The irregular
hours, and the still more irregular meals, picked up
in the intervals of message serving and consisting
commonly of bread or cake with the vilest coffee,
contribute to sapped vitality and broken health.
Such meals foster the craving which seems univer
sal a m o n g workers upon the streets, for cigarettes
and liquor. The incessant temptation to overcharge
is in turn enhanced by the longing for these stimu
lants. The temptation to purloin money and to
overcharge makes thieves of hundreds of children.
The ease with which overcharges m a y be collected
and the relative safety from detection sap the habit
of honesty in nearly all messenger boys. The
writer has had wide experience of working boys and
has never k n o w n a messenger w h o did not, sooner
or later, succumb to the temptation to overcharge.
H o w completely a matter ofcourse itisin the minds
of the children, was s h o w n b y a boy w h o came to the
head of a settlement in N e w York to ask her, in all
simplicity, to help in getting him restored to the
Lower East Side, whence he had been recently
transferred to a district of offices in Broadway,
where everyone, even the office boy, knows the
tariff of charges for delivering messages. A m o n g
the w o m e n of the foreign colonies he had been able
to overcharge at discretion.

After being

trans

ferred, these illicit gains were cut off and he felt
himself aggrieved by the reduction of his receipts,
and set promptly and frankly about securing his
restoration to the field of his former dishonesties,
which it never occurred to him either to conceal or
deny.

19

S O M E

ETHICAL

GAINS

It is one of the ironies of our treatment of our
future citizens that all the disadvantages of t h e m e s
senger service are intensified at the Christmas holi
W o r k is brisker, inexperienced chil
dren are taken on, bundles are larger and heavier
and correspondingly more wearisome to carry than
at other times. Or they m a y be smaller, more
precious and, therefore, more tempting to purloin.
Waiting at the doors of dwellings is trying in the
cold of Christmas days; servants are apt to be slow
because of the unusual demands upon t h e m ; the
contrast between the comfort, perhaps the splendor,
day season.

of the interiors seen by glimpses and the meager
surroundings and celebration at h o m e all these
things make the Christmas experiences of the m e s
senger boys bitter rather than cheering. On the
other hand, people in general are inclined to be
more confiding than usual; overcharging is easier,
the fear of detection is even remoter than at other
seasons.
All the foregoing disadvantages attach to the
night service with even greater force than to the
work by day. After 7 P. M. the work of t h e m e s
senger service and telegraph delivery is peculiarly
unfit for children and should be performed by m e n ,
never by minors; least of all by boys between the
ages of ten and sixteen years. Yet itis these young
lads w h o constitute the rank and file of the service
at the present time; m a n y of them only nominally
fourteen years old while really m u c h younger.
Oneevening,as thewriterwasleavinghometo go
to the railway station to take a midnight train, a
20

T H E

RIGHT

TO

C H I L D H O O D

boy eleven years of age brought a telegram for a
m e m b e r of the family announcing the successful
performance of a surgical operation upon a relative
in adistant city. As the boy's route to the office
involved passing the station, the writer suggested
walking together. In the course of the conversa
tion the boy said: "She didn't take on at all about
her message, that w o m a n didn't. The last message
I carried was to a laundry and the girl was the
cashier. W h e n she seen her message she fell clean
off the stool on the floor in a fit. Her mother was
dead and no previous notice.” He referred to h i m
self as one of the "death-message squad " and ex
plained that between II P. M. and 5 A. M. the m e s
sages sent out from the office in which he was em
ployed were chiefly "death-messages" and " come
immediatelies.” On
reaching the station, just
before midnight, this child of eleven years said
good-night and continued his walk across the C h i
cago River to one of the worst and most notorious
regions of the Levee in which the office was c o n
veniently located.
T h e stirring opportunities afforded by the life of
the streets for boys at the age of the keenest thirst
for adventure, together with the absence of personal
oversight, conspire to lure the messengers to c o m
mit minor offenses. All these considerations taken
together have effectually convinced students of the
child-labor problem that the messenger and tele
graph delivery service rank a m o n g the boy destroy
ing occupations. Yet one telegraph company in
the United States is probably the largest single em
21

S O M E

ETHICAL

GAINS

ployer of boys in the world, having had on its p a y
roll in N e w York City alone, in 1902, 6,000 boys
in order to keep its daily working force at 2,000
boys.
Let us assume that, in spite of all its disadvan
tages, some rare boy survived a long term of em
ployment in the telegraph and messenger service
and emerged with digestion unhurt by irregular
meals and coffee drinking; nerves sound in spite
of lost sleep and cigarette-smoking; character
untainted by evil companionship and the over
whelming temptation to dishonesty. W h a t has
such a boy to show for the years he has spent in
delivering messages?

He

has no trade, no craft,

no skill of any kind, no discipline of mind or body
to fit him for rising in any direction. The irregu
larity of his work has unfitted him for any sustained
effort w h e n he has passed the age for accepting
children's wages.

O n e of the problems of the set

tlements is to find work for boys w h o have o u t
grown the messenger's uniform . The lads have
learned nothing which is of any value to them.
There is no versatility in them which might make
them desirable employees in the hobble-de-hoy age.
Their eagerness to make a record of speed and
promptness

has

all oozed

away.

They

are no

longer dazzled at the prospect of earning $ 4.00 a
week. They k n o w most exactly the purchasing
power of the wages they are likely to receive, and
balancing the fatigue and exertion against the pay,
they simply sit still and wait for something to turn
up, rather better pleased if nothing can be found
22

THE

RIGHT

for them to do.

TO

C H I L D H O O D

Not every boy is morally ruined

by this w o r k ; but the earlier he enters upon it, and
the longer he remains in it, the greater the proba
bility of his ruin.
Every consideration adverse to the employment
of boys as messengers holds with added weight
against the employment of girls. On grounds of
health the exposure to all sorts of weather is even
worse for girls than for boys. Carrying heavy
packages is most injurious for girls, and this is one
of the purposes for which messengers are fre
quently called. Exposure to contact with all sorts
of people is, if possible, worse for girls than for
boys, and most undesirable for both. F r o m the
point of view of health and morals the employment
of boys is sufficiently bad; and in the opinion of
those w h o are best qualified to judge, should be
discouraged in favor of the employment of men.
It is reported that President Eliot once notified
the Harvard Square office of the Western Union
Telegraph C o m p a n y that the rule of the college
must be observed which forbids w o m e n without
escort to visit the dormitories. The occasion of
this notice was the experiment which this company
had

been making in several

places, Cambridge

a m o n g the number, with employing girls instead of
boys as messengers. As most of the business of
the Harvard Square office is done with students,
the experiment at that point was immediately a b a n
doned. Everywhere, the consumer can do what
President Eliot is reported to have done, namely,
make the conditions upon which the companies can
23

S O M E

ETHICAL

GAINS

retain the patronage and custom essential to their
business. To do this, however, the customers must
act in large numbers. It is because President Eliot
speaks for hundreds of patrons that his decision is
final for the company. It rests with the friends
of the children to urge upon the general public the
feasibility of selecting the kind of messengers to
be employed. Certain business offices in N e w York
City are already doing this. They have notified
the local messenger service that small boys will not
be accepted, messages and packages will not be
entrusted to them. To these customers, the c o m
panies send only large boys. In the same way, per
sons w h o telephone calls for messengers, can, by
taking thought, stipulate for a large boy. It is
particularly important to do this at night.
W h e n a sufficient number of persons register
public opinion in this and other practical ways, the
tiny messenger boys will disappear from the streets
of the cities as the infants misused for begging p u r
poses, the shivering little girls offering violets for
sale, and the baby newsboys, have vanished from
the streets of N e w York City. Legislation was
required to banish each one of these groups of little
victims of the streets, and before legislation could
be enacted, and enforced, public opinion had to be
educated. The future citizen most in need of v i g
orous enforcement of existing statutes and of stren
uous public and private protest against his present
w a y of life, is the little messenger boy. On no one
does the denial of the right to childhood act more
cruelly than upon him.
24

THE

RIGHT

TO

C H I L D H O O D

Hitherto, only initial steps have been taken in
the direction of legislation. Ohio prohibits the
employment of boys under sixteen years of age,
and of girls under eighteen, after 7 P. M. But the
law is not, in general, well enforced, and the writer
has seen young boys and has heard upon trust
worthy authority of young girls being employed,
in that state, late at night. Illinois prohibits the
employment of boys and girls alike after the hour of
7 P. M. In N e w York State the enforcement of
the law for the protection of the messenger and tel
egraph boys is, unfortunately, left to the local
boards of health, and the statute is, therefore,
largely nugatory.
With the effort to secure better statutory protec
tion of the children, there shouldbe a generalmove
ment for the employment of m e n in these capacities.
W h y should telegrams, messages and packages be
entrusted to persons of less efficiency than the letter
carriers employed by the government of the United
States? Letters are usually less urgent than tele
grams, less valuable than packages. W h y , then,
should the public consent to be worse served in the
delivery of telegrams, messages and packages than
of letters? Even in the delivery of letters, chil
dren are sometimes employed by the United States
post-offices, indirectly through contracts with the
messenger

companies,

which

send

out

pitifully

small boys at all hours of the night to carry letters
bearing special delivery stamps. It is a perverse
practise which here also entrusts the especially
urgent letter to a bearer of less than the ordinary
25

S O M E

ETHICAL

GAINS

trustworthiness, a practise against which the liveli
est protest might well be made wherever it occurs.
Wherever there is a one-armed m a n out of em
ployment w h o possesses the other qualifications for
the messenger service n o w ordinarily offered by
children, the advantage to the community derivable
from giving the opportunity for a livelihood to
such an unfortunate is so obvious that it would
doubtless be admitted by everyone. The need here,
however, goes m u c h farther than this, embracing
the employment of sound m e n as well as of o n e
armed m e n , in the interest incidentally of the effi
cient service of the community, but primarily in the
interest of the children, the future citizens w h o m
the Republic cannot permit to be sacrificed in the
performance of tasks intrinsically unfit for child
hood.
Children in Retail T r a d e . — B o y s w h o enter
upon employment in retail trade at the age of four
teen years, are at the foot of the ladder of c o m
merce upon which some of them will rise to c o m p e
tence and success. In N e w York such boys must
have attended school one hundred and thirty days
during the last preceding school year, must have
received instruction in reading, writing, spelling,
geography and English grammar.

They must be

familiar with the fundamental operations of arith
metic, including fractions. They must not only
prove themselves fourteen years of age by produc
ing a birth or baptismal certificate, but must be of
the normal development of children of that age and
in good health, in the opinion of the examiner of
26

T H E

RIGHT

TO

C H I L D H O O D

the board of health, w h o issues the certificates w i t h
out which they cannot be legally employed. Their
working day is limited to nine hours and must be
arranged to end not later than ten o'clock at night.
Boys w h o meet these requirements but have not yet
completed the work of the first eight grades of the
public school, must attend night-school six hours
a week during sixteen weeks each year until the six
teenth birthday, unless the curriculum is meanwhile
completed.
This is believed to be the most enlightened statute
yet enacted for the protection of boys entering upon
employment in commerce; and so far as the issu
ce of certificates is concerned, it has been a d m i n
istered conscientiously and effectively. During the
months of October and November, 1903, approxi
mately 2,000 children w h o applied to the board of
health of N e w York City for certificates were
refused them, either because they could not prove
that they were fourteen years of age, or because
they did not meet the educational requirements.
Unfortunately, there is as yet no appropriation
made by the city for the salaries of mercantile
inspectors to enforce the law by following the chil
dren into the stores frequently and regularly.
Since, however, the names and addresses of the
children, with the statement whether or not papers
have been issued, are forwarded by the board of
health to the school officials, the lack of mercantile
inspectors is in part compensated for by the search
made by the school authorities for children thus
shown to be out of school.
27

S O M E

ETHICAL

GAINS

It is probable that there is a close connection
between the unusually high wages paid to children
in retail trade in N e w York and the restrictions
upon their work, both being in excess of the wages
and restrictions c o m m o n elsewhere. Children of
the grade of intelligence here described are worth
better pay than younger, more ignorant children;
and when they meet all the requirements of the law
and have theirpapers in order, they are at a certain
slight premium compared with children of the same
age in communities where the workers are left s u b
jectto the unrestricted competition of younger chil
dren.
On the other hand, such restrictive legislation
tends to stimulate the use of systems of mechanical
cash-carrying; for the higher wages of the p r o
tected children are worth saving. This is clear
gain for the merchant, the children and the c o m
munity; for the work of cash-children is the least
desirable of all the phases of retail trade. T h e act
of carrying cash is in itself a gross temptation,
sharply accented by the suddenness of the child's
transition from the meager possessions of the tene
ment-house family life to the bewildering richness
of a great store. The amounts pilfered by chil
dren are usually so trivial that it is rarely thought
worth while for the employer to prosecute the
offender. A child w h o has been guilty of petty
thieving is usually dismissed and replaced by an
other. But in the life of the tenements and the
stores nothing is hidden; and on the following day
all his associates k n o w what has happened and the
28

THE

RIGHT

TO

C H I L D H O O D

brand of the thief is upon the offender.

Every

reduction in the number of children required for
the performance of this work is, therefore, a gain
for the morals of the working children.
T h e best measures yet enacted for the protection
of girls in retail trade are wholly inadequate. The
law above described as applying to boys in N e w
Y o r k applies to girls also, except that girls are not
required to attend night school. But this is not
enough. In the interest of the public health and
morals there is quite as good ground for prohibit
ing the employment of girls under the age of six
teen years in retail trade as in peddling in the
streets. Girls cannot be kept in the close air of
stores eight or more hours a day, without suffering
a loss of that vitality which it is one of their most
important functions during the years between ten
and sixteen to store up for the uses of motherhood
later on. The disadvantages arising from confine
ment in close air increase in proportion as growing
girls are kept standing, or are subjected to c r o w d
ing and excitement.
Girls are, of course, subjected to exactly the same
temptations to pilfering as boys. Moreover, they
are more at the mercy of the m e n under whose
direction they work.

An

immoral floorwalker or

head of a department possesses appalling power for
evil over the lives of the girls w h o are subject to
his direction. T h e public at large enjoys the free
d o m of every city store; and the position of little
girls offering violets to all passers on the streets,
is essentially not very different from that of the
29

S O M E

ETHICAL

GAINS

young employees in retail trade. There is also en
forced association with older employees w h o m a y
or m a y not be of good character, and the readiness
of girls at the most impressionable age to adopt the
tone of the more striking a m o n g their older associ
ates. Finally, there is for young girls none of the
steadying influence that arises for boys out of the
prospect o f m o v i n g u p w a r d in the line of promotion.
For girls the work which they perform before the
sixteenth birthday is usually a makeshift for the
sake ofthe immediate weekly wage which they earn
at quite as great risk to their future as t h e m e s s e n
ger boys. On behalf of thegirls under the age of
sixteen years employed in retail trade only the most
adverse reply can be given to the question, “ W h a t
kind of citizens are being trained here?"
Meanwhile, pending the enactment of a measure
which shall place retail trade in the same category
as street peddling for girls under the age of sixteen
years, the shortening of the hours of work by the
statutes of 1903 in N e w York and Illinois marks a
substantial gain.
So far as they are enforced, they will make an
end of such spectacular cruelty as the writer wit
nessed, in December, 1902, a few weeks before their
enactment. Returning late at night from the long
rehearsal of the Musical Arts Society, at Carnegie
Hall, some ten days before Christmas, and forced
to wait for a car at Broadway and Grand street, she
found there at eleven o'clock a dozen little girls,
between ten and fourteen years of age. T h e y
proved to be neighbors and eagerly poured forth
30

T H E

RIGHT

the story of their day.

TO

C H I L D H O O D

They had reported for work

at 7:30 in the morning, the stores opening at eight
o'clock. They had had scant time for luncheon,
and worked again until supper time. Then, in one
store they were given ten cents each and in another
store a meal ticket. Several meal tickets proved
worthless because there was nothing left to eat at
the late hour at which the children were allowed to
stop working. After supper, all had worked again
until ten o'clock when they had been sent home.
After waiting half an hour for a car, it was pro
posed to walk h o m e together; but one little girl sat
d o w n on the curb stone, crying and saying that she
could not walk, if she never reached home. T h e
others stayed with her in the cold of December with
midnight approaching, little victims of the cruelty
that, year after year, travesties the Christmas sea
son.
A boy well k n o w n to thewriter described as fol
lows his experience of the shortened working
hours: “ I fill a bin with packages, ready for the
driver to put on his wagon. I begin at seven and
work all day. A w a g o n goes out at eight in the
evening. Then I fill my bin for the driver to put
in his wagon, ready for the morning, the first trip.
I stay by the bin until ten, waiting for the last par
cels bought just before closing time to come d o w n
to me. W h e n the store closes at six, the last of
these come d o w n by ten. T h e n I can go home.
W h e n the store used to be open until eight I went
h o m e at midnight.

W h e n it was open until ten,

I went h o m e at two in the morning.
31

But w h e n I

S O M E
am

ETHICAL

GAINS

ready to go home, the little gatherers come

around, gathering up paper, string, broken toys,
and all the rubbish that accumulates on the floor in
the holiday rush. W h e n the gatherers have fin
ished, the scrubbers come along and clean the floors,
and the gatherers generally go h o m e about the same
time as the scrubbers, two hours later than I go
home.”
Henceforth, no child under the age of sixteen
years can be legally employed after ten o'clock at
night in N e w York or after seven o'clock in Chi
cago. The change for the children employed in
the retail stores in Chicago, to be derived from this
n e w statute, is illustrated by another winter-night
observation of the writer made some years ago
when

returning from the Auditorium after the

usual Christmas rendering of the Messiah. The
oratorio had been long, there had been delays, and
it was nearly eleven o'clock when the cars turned
the corner at A d a m s street to go west and then
southward. There were the usual grip-car and two
trailers of the cable-train then used on the streets
of Chicago. All were quite empty when they
stopped. W h e n they started again, all were
crowded with children and half-grown girls from
the great department stores. M a n y of the children
could not get inside the cars, but stood huddled on
the platforms and the grip-car, exposed to the fall
ing snow after their long day in the overheated air
of the stores.

S o m e of the little girls fell asleep,

others clung to straps, laughing or crying hysteric
ally. All had gone to work in the early morning;
32

THE

RIGHT

TO

C H I L D H O O D

all expected to return to w o r k — s o m e at seven
o'clock the next morning, others at eight.
The writer and her companion were the only
adult passengers, and when they left the car the
weary children continued their journey with only
the gripman and conductor. S o m e of them would
go to the end of the car-route, and then stumble
wearily through deep snow in the winter midnight
far across the prairie to their homes.
Children in Manufacture. T h e presence of
children in mills began with the division of labor,
and the development of machinery driven by steam.
It was a feature of the civilization of the nineteenth
century, but reached no large dimensions in the
United States before 1870.
Since then it has in
creased and continues to increase wherever no
counter order is given by restraining laws rendered
effective by alert and organized public opinion.
It has been shown that the end of childhood and
the beginning of toil is an undetermined epoch.
Even where, as in N e w York and Illinois,manufac
ture and commerce are closed to children under the
age of fourteen years, street-life, tenement-work
and the drudgery of the " little-mothers" m a y
occupy the earlier years. In less enlightened
states, manufacture and commerce are open to chil
dren at an earlier age, until in Georgia? there is no
statutory protection.
As to the age at which children m a y begin to
work in manufacture, the evolution of the public
conscience m a y be observed at every stage, from
1See Appendix I.
3

33

S O M E

ETHICAL

GAINS

the utter absence, as in Georgia, of all statutory
careeven for children aged five, six and seven years,
to the highest point yet achieved of carefully cher
ished childhood under the statutes of N e w York
and Illinois.
In 1903, the legislature of Georgia met twice and
at each session refused after long deliberation to
enact a statute restricting the employment of chil
dren in cotton mills. There is, therefore, no limit
below which children m a y not be employed if m a n
ufacturers can make use of them. The writer has
seen children at work in a Georgia mill w h o were
pitifully stunted if they were eight years old.
There is, in Georgia, no restriction upon the hours
of work, and usage calls for eleven hours in twenty
four. It was, therefore, due merely to the good
will of their employer, that these little boys and
girls were not required to form part of a shift
of workers at night. Georgia, by these repeated
votes of her legislature in 1903, has taken a stand
ethically lower than that of England in 1802, when
Sir Robert Peel's act was adopted; although
industrially Georgia is one of the most modern of
states if tested by the purely material standard of
the equipment of her mills.
T h e same Georgia legislature of 1903 which
refused to prohibit the work of children less than
ten years of age, enacted a law declaring any m a n
a misdemeanant w h o permits his young children to
work in a mill while refusing work which m a y be
offered him. Cases arising under this law, h o w
ever, seem already to have demonstrated its futility
34

T H E

RIGHT

TO

C H I L D H O O D

as a measure forthe protectionofthe children. For
the fathers arraigned under it found no difficulty
in proving that they occasionally did some casual
work, enough to exempt them from all penalties.
Thus Georgia ranks with Oklahoma in placing
no restriction upon the exploitation of children.
Oklahoma, however, has no manufacture and little
commerce; while the cotton mills of Georgia are
doubling their spindles with bewildering rapidity,
and n e w villages grow up along the line of the
Southern Railway almost between spring and
autumn.
South Carolina has adopted a curious comp r o
mise according to which children under the age of
eleven years were not to be employed after M a y
Ist, 1904, and children under the age of twelve
years not after M a y 1st, 1905. There are such
exemptions in favor of widows, whose children m a y
work on reaching the tenth birthday, as m a y reason
ably be expected to induce m a n y wives of w o r t h
less husbands to pose as widows a m o n g the shift
ing populations of the mill-villages.
Alabama prohibits the employment of children in
cotton mills before the twelfth birthday (always
with the exception of orphans and the children of
widows) and restricts work at night expressly to
those children w h o have reached the age of thir
teen years. Between the thirteenth and sixteenth
birthdays both boys and girls m a y legally work
eight hours at night.
Similar laws, but without the restriction upon
night work, are in force in North Carolina, Vir
35

S O M E

ETHICAL

GAINS

ginia, West Virginia and Missouri. Louisiana pro
hibits the employment of girls in mills before the
fourteenth birthday, but permits boys to work at
the age of twelve years. Texas prohibits the em
ployment of illiterate children under the age of
fourteen years; those w h o can read and write m a y
work at twelve, both boys and girls.
The practical value of all these laws to the chil
dren and to the community is slight because there
are neither inspectors to enforce them, nor schools
to receive the children if they were effectively b a n
ished from the mills.

The chief worth of the stat

utes is that they register the growing conviction
of the community that children must receive some
m o d i c u m of protection.
For the children they are not wholly valueless,
because when a measure for the safeguarding of
childhood is enacted, certain employers obey it s i m
ply because itis there, irrespective of penalties and
inspectors. Less scrupulous employers also obey it
in m a n y cases because they are advised by counsel
that they will be liable to the child's family in
heavier damages in case of accident to a child em
ployed illegally, such employment constituting in
itself negligence on the part of the employer, while
a child under the legal age for employment m a y be
held by a court to be incapable of contributory n e g
ligence. In still other cases, accident insurance
companies decline to insure children employed in
violation of the law. Hence a body of usage be
gins to form as soon as a child labor law is enacted;
and in the long run, only the ignorant and the
36

T H E

RIGHT

TO

C H I L D H O O D

viciously contumacious have to be brought to obedi
ence by the prosecuting and enforcing authorities.
F r o m this point of view these recent statutes of
Alabama, North and South Carolina, Texas and
Virginia are to be regarded as cheering ethical
gains; for they mark a change in the public con
science with regard to the sacredness of childhood
and promise a continuous process of education of
parents and employers such as has taken place in
several Northern states during the past thirty years
and is still going forward.
History repeats itself in the exemptions embraced
in the n e w Southern laws. It was as recently as
1903 that N e w Jersey and Wisconsin repealed pro
visions authorizing the employment of orphan or
indigent children earlier than other children. W i s
consin had formerly placed the invidious task of
granting permission for such children to work upon
the county judge, and N e w Jersey upon the factory
inspector. Judges are but indifferent investigators
of indigence, and rely in these cases upon the
opinion of the factory inspector, w h o is thus dis
tracted from his legitimate duty of inspecting fac
tories to inspect family relations and poverty. In
Kentucky this evil provision still exists, but public
opinion is so thoroughly aroused in favor of abol
ishing it, that repeal in the near future seems inevi
table. Under the exemptions embraced in the n e w
Southern child labor laws, the tendency for every
child deserted by its father, and for every illegiti
mate child w h o would be a cost to the community,
to be accounted an orphan and, therefore, liable to
37

S O M E

ETHICAL

GAINS

exploitation in a cotton mill, m a y reasonably be
expected to manifest itself.
At the opposite end of the scale of morals and
enlightenment from the action of Georgia, is the
recent history of legislation in Illinois, which ex
hibits an interestingly rapid gain in recognition of
the claim of childhood to immunity from responsi
bility of an industrial and financial nature. Before
1885, the industrial demand for the labor of chil
dren existed in that state only to a limited degree.
Children were available for the street trades, the
retail stores, offices, etc., but manufacture was of a
character offering little opportunity for the use of
children's labor. Textile industries were almost
unknown and only the glass-bottle trade found boys
indispensable. In 1894, the first full year in which
the inspections were made under the state factory
law of 1893, there were found at work in the fac
tories and workshops, 8,130 children under the age
of sixteen years. In 1895, the number rose to
8,624. In 1897, the statute was extended to em
brace children engaged in commerce, and the fac
tory inspector's report for 1902 showed more than
nineteen thousand children at work under the age
of sixteen years, in manufacture and commerce
alone, not including the children in mines and the
streets of the cities.
The first child labor law of Illinois prohibited
the employment of children under the age of four
teen years in mines. This was enacted in response
to the efforts of the miners' unions. It provided
for no exemptions. This effort of the miners has
38

THE

RIGHT

TO

C H I L D H O O D

achieved a substantial gain or the ethical activity
and perception of the people of Illinois. No one
would n o w venture to argue in favor of employing
young boys under ground in that state, while boys
of twelve years m a y still legally work in the coal
mines of Kansas, and in all mines in Iowa, M i s
souri and North Carolina. In 1890, an ordinance
of the City of Chicago prohibited the employment
in manufacture or commerce of any child under
the age of ten years "unless there be dependent
upon such child any sick or infirm parent or adult
relative.” The legislature of 1891 prohibited the
employment anywhere in the state of a child under
thirteen years of age with the same startling p r o
viso. In 1893, all employment of children under
the age of fourteen years was prohibited in m a n u
facture but permitted as before in commerce. In
1897, the m i n i m u m age for employment in c o m
merce was raised to fourteen years and thus made
uniform with the m i n i m u m already established for
mining and manufacture. All exemptions were
abolished. Tested by experience the administra
tive part of the statute proved weak and again c o m
prehensive amendments were adopted in 1903.
As
the law n o w stands, a child under the age of six
teen years m a y not work after seven P. M. nor
longer than eight hours in one day and forty-eight
hours in one week. Nor m a y a child under the age
of fourteen years be employed or permitted or suf
fered to work in mining, manufacture or commerce.
These provisions are unspoiled by any exemptions
whatever. Moreover, a child under the age of
39

S O M E

ETHICAL

GAINS

fourteen years must attend whatever school he is
in throughout the full term, comprising a fixed
m i n i m u m of 110 days in the school year.
Illinois has thus faced, more boldly than any
other American state, the fact that children to the
age of sixteen years are different from adults and
must be differently treated in industry. The n e w
laws throw upon the community the burden of
maintaining all those sick and disabled parents and
dependent adult relatives w h o m , as late as 1890,
the state entrusted to the precarious efforts of the
children ten years old or less.
A significant measurement was immediately made
of the resultant burden to the community. Miss
Jane Addams, of Hull-House, asked the Chief In
spector of Factories to report to her the names and
addresses of all children under fourteen years of
age w h o had been employed under the more lax old
law and were n o w deprived of employment by the
enforcement of the more rigid n e w law, and whose
mothers were widows. This was done. In the
period between July ist, w h e n the law took effect,
and October 26th, fourteen cases in Cook County,
which embraces Chicago, and six cases in the rest
of the state, had been found in which this form of
hardship appeared to occur. The twenty families
were investigated with the utmost care, in coöpera
tion with the Bureau of Charities of Chicago. In
the end, three families in Cook County and five in
the remainder of the state proved to be in need of
the equivalent of the wages which a fatherless
child less than fourteen years of age had been earn
40

THE

RIGHT

TO

C H I L D H O O D

ing. The task remained of raising money to be
used as scholarships for these children until they
should reach the fourteenth birthday. The wages
earned by the children were from two to four dol
lars a w e e k ; and they ranged in age from twelve
years and six months to thirteen and a half years.
The period for which the scholarship was needed
varied, therefore, from six to eighteen months; and
the total amount for each child varied between $ 104
and $200 distributed over a period of eighteen
months. The necessary money was secured in
coöperation with the Illinois Federation of Women's
Clubs, and the payments are made weekly on Satur
day, on presentation of the written statement of the
principal of the public school that the child's attend
ance has been regular and satisfactory. This a d e
quate volunteer aid, supplied by a few persons,
shows once for all h o w slight is the basis for the
widely expressed fear lest hardship be inflicted far
and wide, by prolonging the period of childhood to
the fourteenth birthday.
The results of this Illinois experiment in furnish
ing scholarships for children w h o had worked under
the age of fourteen years and were deprived of
wage-earning by the operation of the more strin
gent new law clearly demonstrate that children have
not, to any considerable degree, been contributing
to the support of their families. It is impossible
that they should do so. The community must in
evitably support in some way, well or ill, all its
dependent members. But in the cruel belief that
this burden could be placed upon the young chil
41

S O M E

ETHICAL

GAINS

dren, thousands of them have, during the past thirty
years, been deprived of the rights and privileges of
childhood.
The state which accepts the plea of poverty and
permits the children of the poorest citizens to labor
prematurely, accepts the heritage of n e w poverty
flowing from twosources; namely, on the one hand,
the relaxed efforts of fathers of families to provide
for them, and on the other hand the corruption of
weak children by inappropriate occupations which
involve temptation beyond the child's power of
resistance, and the exhaustion of strong children by
overwork. It is exactly the most conscientious and
promising children w h o are worked into the grave
or into nervous prostration, or into that saddest
state of all, the moral fatigue which enables a m a n
to sit idly about for years while his wife or his sis
ter, or his children support him.
Hence it appears that there is need of shifting
the accent of the current method of caring for
dependent widows and children by public and pri
vate philanthropy. If the orphan child, by virtue
of his future citizenship, has a claim to sustenance,
education, freedom from exploitation (his labor
being contraband), and a corresponding duty to go
regularly to school, then there should be syste
matic harmonious provision for this. Such a child
should not be left to the precarious provision of
sporadic private charity. W h y should such chil
dren not receive scholarships dependent upon reg
ular attendance and good behavior, and provided
out of the school-funds?
42

T H E

RIGHT

TO

C H I L D H O O D

T h e Glass Bottle Industry.

The urgent need

forthe present stringent law of Illinois can, perhaps,
best be made clear by a somewhat detailed descrip
tion of the children in one trade as it was found to
existten years ago.
W h e n the first factory law of Illinois was enacted,
in 1893, it prohibited the employment of children
under the age of fourteen years in factories and
workshops. For children employed in the glass
bottle works, this provision, until the present year,
w h e n the n e w law made this method more difficult,
was successfully evaded by dissolute m e n and
w o m e n w h o gathered in orphan and deserted chil
dren from the poorhouses of five counties adjacent
to that in which stands the city of Alton, and from
the orphan asylums in St. Louis, and made

affi

davits as "guardians” of the children that the lads
were fourteen years of age when they were really
from seven to ten. The "guardians" then p r o
ceeded to live upon the earnings of the children
which were, in 1893, forty cents a day for small
boys and sixty cents for larger ones. O n e " g u a r d
ian ” controlled the wages of several boys.
In
some cases the "guardians" and their wards lived
in shanty-boats along the Mississippi river, drawing
their floating habitations well up into the m u d of
the river bank for the winter, and floating a w a y for
the s u m m e r , when the glassworks closed.

During

this enforced holiday the "guardians" and the chil
dren lived precariously by fishing and berry-pick
ing, the children profiting by the fact that the glass
43

S O M E

ETHICAL

GAINS

blowers could not endure the heat of the ovens d u r
ingJuly and August.
The earnings of the glass-bottle blowers depend
somewhat upon the speed of the boys w h o fetch
and carry for them. These lads are, therefore,
kept trotting at the highest speed which a child
can maintain for several hours. In making inspec
tions of the glass-bottle works, the writer found it
impossible to get from a boy a consecutive state
ment as to his name, address or parentage. A boy
would say, " M y name is Jimmie;" and then trot to
the cooling oven with his load of bottles and return
ing say, in answer to a fresh question, “ I live in a
shanty-boat;" then trot to the moulder for another
set of bottles and returning say, " I'm going to be
eight next summer,” and so
four lads questioned during
not one ventured to pause
together two of the foregoing

on. A m o n g twenty
one night-inspection,
long enough to put
statements. A n d the

eye of the boy interrupted in his work was always
fastened anxiously upon the blower for w h o m he
was working. The blower did not pay the boy,
w h o was carried on the payrolls of the c o m p a n y ;
but when a boy was detained for the purpose of
questioning, a shrill whistle sounded and the boy
would say to the inspector, “ Don't you hear him
doggin' m e ? "
The load of bottles which a boy carries at any
one time is not heavy and there is no lifting to be
done. Hence such work is commonly described by
employers as “ light and easy." But the circum
stances attending the work, the surroundings amid
44

THE

RIGHT

TO

C H I L D H O O D

which it is done, fill the words with grim sarcasm.
T h e sustained speed required of the children and
the heated atmosphere render continuous trotting
most exhausting. An hour's steady trotting in
pure air tires a healthy schoolboy, of seven to four
teen years; but these little lads trotted hour after
hour, day after day, month after month, in the heat
anddust.
There was no restriction upon night work.

Any

boy w h o was eligible for work at all, was used indif
ferently by night or by day; and pitifully little chil
dren were found at w o r k a t two o'clock in t h e m o r n
Often a sleepy child, stumbling a m o n g frag
ing
ments of white-hot glass, received serious burns;
and bandages were more c o m m o n than a m o n g any
workers that the writer has seen in the course of
m a n y hundreds of inspections. Indeed, loss of
time while recovering from burns received during
their work constituted one of the grievances of the
“ blowers' dogs," of w h o m several were found in
their homes convalescent from burns and other ill
nesses incident to their occupation. Mothers c o m
plained bitterly, too, of the loss of coats and shoes
by burning when the boys collided with each other
in thecourse of their work, theburden ofeach being
glass heated just below the melting-point.
At theclose of the day's work or the night's work,
the children went from the heat and glare of the
glass-ovens into the cold and dark of the morning
or evening. They went, with the m e n with w h o m
they worked, to the nearest saloons to buy the cheap
drinks which were freely sold just across the street
45

S O M E

ETHICAL

GAINS

from the works. All the boys used tobacco, usually
chewing it, those of seven and eight years of age
doing exactly what the m e n did by whose side they
spent their working hours. As seen and heard at
their work, and at the closing hour, when they left
the works, these children were stunted, illiterate,
profane, obscene, ruined in body and mind before
they entered upon the long adolescence k n o w n to
to happier children.
The sharp contrast between the heat of the glass
ovens and the frost of the winter mornings, p r o
duces in the children, wearied by hard work, rheu
matism and affections of the throat and lungs, from
which m a n y of them die before reaching the age of
apprenticeship. Of those w h o survive, virtually
none succeed in attaining the position and wages
of a skilled glass-blower. Their health would be
inadequate to the strain, even if the career were
open to them. But it is not open; for an old rule
of the union limits closely the number of appren
tices to each hundred glass-blowers and fixes the
age of apprenticeship at seventeen years. The c o v
eted privilege of apprenticeship is commonly re
served by the blowers for their o w n sons, w h o m
they do not employ as “ dogs" but keep to the age
of seventeen years, either attending school or w o r k
ing in some less destructive occupation than glass
bottlemaking
W h e n in 1893 the first efforts were made to
enforce the child labor law in the glassworks at
Alton, the employers and the press foretold dire
sufferings for the widows
46

dependent upon their

THE

RIGHT

TO

C H I L D H O O D

children's earnings. The writer, as responsible
head of the factory inspectors, by request of the
governor of Illinois, made an investigation of the
general conditions of life of the children and their
families, aside from the work which they did in the
glass-ovens.
It soon became clear that the opening for the
employment of young children served continuously
to attract to Alton a most undesirable population
from m a n y places in Illinois and neighboring states.
Thus the first three alleged widows w h o were vis
ited, had all come from other places for the express
purpose of living upon the earnings of their
wretched, illiterate sons, supplemented by the gifts
of the charitable. O n e was found living in a tent
with three children, the two younger ones being
regularly neglected while the mother and the older
boy worked in the bottle works. Another "widow "
did washing, which was insufficient for the m a i n
tenance of herself and three children. Her husband
had been sent two years before to an asylum, an
incurable patient. A trifling, continuous addition
to her earnings would have enabled her to keep her
boy in school; but the charitable people of Alton
contributed to the partial support of her family
while the glass-works exploited her boy at wages
below the point of present subsistence, and with no
acquisition of skill such as might make him self
supporting in later years. If the boy had not
worked, though of school age and illiterate, the
mother feared that the charitable gifts might be
wholly cut off. There appeared to be good reason
47

S O M E

ETHICAL

GAINS

for her fear, as the mayor of the city stated to the
writer that he had, himself, sent to the glassworks
in search of work, a widow and her little boy under
the legal age for working, w h e n the mother
appealed to him for help. T h e third of the " w i d
ows” was blind, and her husband, blind also, was
in an asylum. She lived in a shanty-boat with her
four little children. Of her two boys aged seven
and nine years w h o worked at the glassworks, one
was blind in one eye. W h e n the husband was sent
to an asylum, the family was placed in its boat by
the county authorities and told not to return. They
accordingly floated d o w n from a point above P l y m
outh to Alton where, although the two little boys
immediately found work, the mother promptly
applied for relief which was refused on the ground
that "her able-bodied sons” should support her.
In the family of a laborer w h o was working for
eighty cents a day, the consumptive wife and baby
were found shivering over a drift-wood fire in a
dilapidated boat, while two boys aged eight and
ten years worked at the glassworks. The family
had floated d o w n the river in the autumn for the
sake of sending the children into the glassworks.
A worn-out and dissolute glass-blower w h o had a
pension of eight dollars a month and five children
under the age of fourteen years, had recently m a r
ried a widow with six children under fifteen years.
Father, mother and the eleven children were living
in a tent between the river and the works, where
several of the children were employed, some by
night and some by day, so that the beds in the tent
48

T H E

RIGHT

TO

C H I L D H O O D

were used by different children, one set rising to go
to work when the others returned to sleep.
All these families — and they are merely a few
examples of a large population which they typify
had been sent or brought to Alton in order to meet
the demand of the glassworks for cheap child labor.
They were a permanent charge upon the charitable
people of the city. In no single case did the earn
ings of the little boys really support the family and
relieve the community even immediately and t e m
porarily of that burden. There was child labor and
charitable help, and in most cases, chronic pauper
ism besides, with every prospect that the over
worked, ill-brought up boys would themselves be
speedily added
the invalids.

to the ranks of the tramps

or

Under the recent rigorous prohibition of the em
ployment of children under the age of sixteen years
after 7 P. M., the possibility of exploiting such
young children as were found at work in 1893 is
m u c h reduced. Under the provision which requires
the oath of the parent to be corroborated by the
signed statement of a responsible person in a recog
nized school, that the child is fourteen years of age,
has attended school and can read fluently and write
legibly, such exploitation must be still farther
reduced.
W h a t then, is it reasonable to expect in the im
mediate future for such dependent families as those
above described? Certainly Alton can no longer
serve as so powerful a magnet drawing them to
itself. The local authorities of the various cities
4

49

S O M E

ETHICAL

GAINS

and counties can no longer ship to Alton all those
dependent families which happen to include a young
boy under the age of fourteen years.

The artificial

aggregation of pauperism in one place m a y be
expected to diminish. A number of scattered c o m
munities will each have its o w n few dependent f a m
ilies of this class to sustain until the children attain
the qualifications of age and education which the
state stipulates. That these families can be induced
to keep their children in school by means of a very
modest scholarship for each child, has been c o n
clusively shown by the experiment recently con
ducted in Chicago.
For m a n y years, the opportunity for exploiting
young children in Alton tended to collect there a
disproportionately large body of dependent f a m
ilies. Then the presence and number of these f a m
ilies served as an argument for the necessity of
continuing to exploit the children. The artificially
accumulated mass of poverty perverted the minds
of m a n y otherwise kindly persons w h o failed to see
that a pauper family is no less a pauper family
because itis using up and wearing out by premature
labor a young child w h o , if cherished and trained
for a few years, would subsequently be able to s u p
port his family and redeem it from pauperism.
It is no small ethical gain to clear up the confu
sion of mind which led persons of all sorts to ex
plain that the children w h o worked at the glass
works were so intrinsically and inevitably bad that
nothing could be done with them in the w a y of e d u
cation or of reform. The use of stimulants by
50

THE

RIGHT

TO

C H I L D H O O D

young boys, which inevitably followed overwork
and evil example, was very generally attributed to
the hopelessly bad native character of the unhappy
children; as were the foul language, filthy personal
habits and propensity to gambling c o m m o n to old
and young employees. Every citizen of Alton w h o
talked with the writer about the boys working at
the glassworks, dwelt upon the bad character of
the children, calling them “tough” or “dissolute”
according to the habit of speech of the person.
The suggestion of abolishingthe work of such chil
dren, dispersing the army of little offenders, dis
tributing them through the schools with which
m a n y of them were totally unacquainted, making
schoolboys of the whole body of children of c o m
pulsory school a g e — the line of action taken by
Boston, N e w York and Buffalo with regard to the
dissolute young newsboys upon their streets— this
simple recognition of the right of childhood to
school-life and immunity from toil, never found
expression on the part of one person with w h o m the
writer came in contact in a long and active study
of that prosperous city. The mayor actively pro
moted the employment of children under the legal
age for work. An important officer of the board
of education was a member of the glass m a n u f a c
turing company, and was of the opinion that the
employment of a truant officer and the enforcement
of the compulsory education law would inflict an
intolerable burden of poverty upon the community.
T h e secretary of the associated charities, w h o was
a minister, and the superintendent of the poor, also
51

S O M E

ETHICAL

GAINS

a minister, agreed that nothing could be done
which would make it appear that the glassworks
had been employing pauper labor, and therefore
they could not undertake to furnish scholarships
for the children w h o m the factory inspectors
turned out of the glassworks because they were
under fourteen years of age.

Only teachers of the

primary schools expressed regret at losing some of
their brightest and best behaved little boys out of
the lowest grades to go to work “ a m o n g those
drinking, swearing, gambling ragamuffins at the
works.”
It is clear gain for a community to be freed from
such obliquity of moral vision as this; to be forced
to face its o w n burden of sins of omission and c o m
mission against the children of its poorest and most
dependent citizens; to be constrained to take upon
the broad shoulders of the adult population that
burden of maintenance which children cannot carry,
even though in the cruel effort to force them to do
the impossible they m a y be crushed body and soul
as hundreds of children have been crushed and
ruined in the beautiful and prosperous city of Alton.
In Southern N e w Jersey, in Western Pennsylva
nia, wherever the glass bottle industry attains a
high state of development, the same tendency is ob
servable. Dependent families are, as it were, en
ticed to bring their young children to work in the
glass-bottle factories. W h e n a large number of
such families have come, the demand for still more
young boys leads to the importation of detached
lads.

Then the presence in the community of an
52

T H E

RIGHT

TO

C H I L D H O O D

undue proportion of dependent persons, young and
old, serves as a reason for deferring legislation re
stricting the employment of the youngest children
and providing for their education.
There is nothing either accidental or passive in
this process. Although the manufacture of glass is
one of the industries most highly protected by the
tariff for m a n y years past, and although the wages
of glass-blowers are protected by a most influential
and all-embracing union, yet employers and glass
blowers have, in at least two states, worked together
to keep the children from receiving any adequate
legislative protection. In Illinois for ten years the
glass manufacturers were successful in their un
wearying efforts to prevent the enactment of a pro
vision restricting night work to personsoverthe age
of sixteen years. A n d even when the present en
lightened measure was finally passed, in 1903, this
was done against the protest of the manufacturers
and of a glass-bottle blower w h o appeared before
the senate committee at Springfield in opposition to
the bill. In N e w Jersey, in 1904, there was the
same conflict, the glass-bottle blowers' union as
such urging the passage of a law prohibiting night
work for children, and the glass manufacturers
nevertheless securing for the opposition the support
of a state senator at Trenton, w h o had once been a
blower, and w h o succeeded in getting stricken out
of the bill this most valuable of its provisions, de
spite the united efforts of the labor organizations of
the whole state, and o f t h e Children's Protective
53

S O M E

ETHICAL

GAINS

Alliance, comprising forty societies for the protec
tion and welfare of children.
In Pennsylvania, in March, 1903, the Western
Pennsylvania Association of Glass Manufacturers
voted at a public meeting held in Pittsburg to keep
a committee at Harrisburg throughout the session
of the legislature to prevent the enactment of a
measure prohibiting night-work for children and
all employment of illiterate children. So successful
was this committee that the friends of the bill were
not even granted a hearing before the senate c o m
mittee to which the bill was referred. In all these
cases the arguments used were identical.

Poverty

must not be intensified by prohibiting the e m p l o y
ment even of the youngest and most illiterate chil
dren.
Fortunately, the friends of the working children
have at last succeeded in bringing to light the hy
pocrisy of this plea. It has been shown that for a
series of years the glass manufacturers of N e w
Jersey and Ohio have imported children from other
states. Charitable institutions and child placing
agencies have been appealed to to furnish detached
boys andhave done so in more than one case. Chil
dren have been sent from one state to another to
meet the demand. It is n o w only a question of
time until all the legislatures which have to deal
with this child destroying trade shall take the same
view which Illinois and N e w York have taken ; and
shall say that the state can better afford to part with
such an industry than to sacrifice to it hundreds of
children every year.

A n d when they do this, no
54

THE

RIGHT

TO

C H I L D H O O D

state will lose its glass-bottle industry; but the in
stallation of mechanical contrivances to supplant
boys will go forward just as cash carriers are n o w
supplanting cash children, and as the telephone is
replacing the telegraph and messenger boy in m a n y
suburbs. In some occupations child labor by its
very cheapness to the employer actually hinders the
use of devices which are costly in the initial instal
lation; and itis believed that the glass-bottle indus
try is one of these.
The

glass bottle industry illustrates one signifi

cant phase of child legislation in this country;
namely, the long default of philanthropy on behalf
of the wage-earning children. We have had no
Lord Shaftesbury devoted to the child workers and
coöperating with the organizations of workingmen
in the interests of the children. To the organiza
tions of labor are due all the earlier statutes for the
protection of the working children, and this protec
tion has been left wholly to the trades unions until
within a very few years. In certain industries this
has been done effectively, as in the cigar trade
where the introduction of machinery is only n o w
leading to a large influx of children. In other in
dustries, the adaptability of children has been so
great as to render the unions powerless to protect
them adequately either by legislation or by refusing
to work with them. Conspicuous a m o n g these are
the textile industries. In still other trades, the
wages of the worker have been made to depend in
some degree upon the interlocking work of children,
and in these the difficulties attending progress
55

S O M E

ETHICAL

GAINS

towards adequate guarding of childhood have been
most conspicuous of all. Such is the glass indus
try. Here the wage of the blower of bottles, lamp
chimneys, drinking glasses and m a n y other small
objects depends largely upon the speed with which
children as moulders and carriers coöperate with
him. Hence the blower has a strong money interest
in the employment of nimble children in abundance.
It is vastly to the credit of the workers in the
trade that, through their organizations, they have
made a struggle covering the last quarter of a c e n
tury for statutory prohibition of night work for
children.

A n d it is easily understood h o w their

efforts have here and there been foiled by a weak
brother proving open to the persuasions of the em
ployers and ready to appear before legislative c o m
mittees on behalf of the farther work of children in
the same old way.
It is, however, sadly true that workingmen are
not always experienced in the drafting of bills, and
that some of the measures which they have a d v o
cated have proved non-enforceable when enacted.
Moreover, they have in several conspicuous cases
been induced to contribute actively, though unin
tentionally, to the nullification of the statutes the
enactment of which they had secured, by accepting
as responsible heads of the factory inspection depart
ments m e n whose sole qualification for the position
was their professional devotion to the cause of trade
organization. T w o classic examples of this are the
chief factory inspectors of Pennsylvania and
Illinois during the closing years of the nineteenth
56

T H E

RIGHT

TO

C H I L D H O O D

century. In the former state the unions acquiesced
in the utterly incompetent administration of the de
partment of factory inspection because the chief in
spector had been for several years an officer of the
Glass Workers' Union of the Pittsburg district, al
though he effectively blocked every effort to im
prove the laws with regard to the employment of
children at night or while illiterate. The chief
inspector of factories of Illinois from 1897 to 1901
had been, previously to his appointment, for t w e n t y
seven years on the pay roll of the Illinois Glass
C o m p a n y at Alton. Throughout his term of office
there were no prosecutions for violations of law by
glass manufacturers, nor was the child labor law of
Illinois amended. Yet no effort seems to have been
made by any trade organization to secure his re
moval and the appointment of an effective official.
Within five years philanthropic people, notably
m a n y organizations of w o m e n , have systematically
worked for the enactment and enforcement of child
labor legislation, usually in coöperation with the
state and local organizations of workingmen. Just
in proportion as this coöperation develops will the
gains on behalf ofthe working children become per
manent; and the coöperation, itself, is a process of
education for both philanthropists and workingmen.

57

C H A P T E R II

T H E CHILD, T H E STATE, A N D T H E N A T I O N
It has been shown that children are working in
their homes, in the streets, in commerce, and in
manufacture; and it appears that there are divers
economic and social causes for their work.
Chief a m o n g these causes of child labor is the
greed of parents, due largely but not exclusively to
poverty. T w o casesoutofthe writer's acquaintance
m a y illustrate the false ideals which underlie m u c h
parental exploitation of young children.
An Italian immigrant arrived in this country pos
sessed of nothing beyond his wife, little son and
daughter, and railroad fare to Chicago. In that city
he rented one dark room in a tenement-house and
proceeded to pick rags in the streets. His wife
sorted the rags in the court of the tenement-house
with the help of the daughter; and the boy became a
boot-black as soon as he was strong enough to make
leather shine. The children never attended school,
the compulsory attendance law being, at that time,
wholly

illusory. The father prospered, placed
money in the savings-bank, and in an incredibly
short time began tobuy, under a third mortgage, the
house in which he lived. The court of the tenement
house becoming too small for his work, he rented a
58

CHILD, STATE

A N D

NATION

vacant lot on which he stored rags, old iron and
junk of all sorts. He never ceased to pick rags, and
transferred the labors of his wife and daughter from
their courttothe n e w place ofbusiness which he sur
rounded with a high fence. He completed the pay
ments for all the mortgages upon the tenement
house, continuing to the time of his death to live,
with all his family, in the dark room which he had
occupied on his arrival. He paid for the corner-lot
upon which he conducted his business and made
other investments.

It was his ideal to leavehis chil

dren a large fortune.

But one day he trod upon a

rusty nail, and with characteristic niggardliness,
bound up his bleeding foot with one of his o w n rags.
Lockjaw followed and he died, leaving to his n o w
grown up, illiterate son and daughter one hundred
and forty thousand dollars. The son, by drinking
and gambling, dissipated the fortune in a few
months, and the daughter disappeared into the sad
obscurity of the Levee.
In the case of the second family, a young Bo
hemian, able-bodied and eager to work, brought his
bride to this country, both filled with the hope of
earning and owning a home. W h e n the eldest child
was eleven years old, the father was killed on the
railroad, where he was at work as a section-hand,
and the home, half-paid for, was lost by the widow.
But she never wavered from the early ideal, and sent
her eldest boy at once to work in a cutlery, where he
riveted the wooden handles of knives, performingan
entirely mechanical task adapted to his feeble intel
lect. This child was hunchbacked, feeble-minded
59

S O M E
and consumptive.

ETHICAL

GAINS

W h e n the mother was r e m o n

strated with forexposinghim tothe fatigue and d a n
ger attending his work a m o n g wood-dust and steel
filings, her reply was: “ H i m no good. H i m work,
send Valeria and Bocumil school, buy house, them
some good.” For years, the factory inspectors of
the state, and the local school officer, after the enact
ment of the compulsory attendance law, endeavored
to free the unfortunate boy from his deadly occupa
tion. The mother made whatever affidavits might
be necessary from time to time, to enable him to con
tinue, and relentlessly sent his brother and sister to
work at the earliest moment possible. W h e n last
seen, she was rising at three o'clock in the morning
to dig onions for a pickle factory in the outskirts
of the city ; the daughter Valeria, ten years old, was
working from d a w n to dark throughout the summer,
sorting onions; the cripple was dying of overwork
and neglect; and the other boy, Bocumil, originally
healthy, had become deformed from beginning too
early to carry boards on his back in a furniture
factory.
The widow, however, regarded herself and was re
garded by her approving pastor as a model of thrift
because she had bought and partially paid for a tiny
frame cottage, on the prairie, far from any school,
in the immediate neighborhood of the pickle-factory.
Shewill neverknow that she has lost forher children
all the best things that America offers to the i m m i
grant child, in the life of the public schools. Fortu
nately, the recently enacted stringent laws will make
itimpossible for other children coming to Chicagoto
60

CHILD, STATE

AND

NATION

be deprived, by the false ideals of their parents, of
those precious possessions of child life in America,
leisure and school.
A second cause of child-labor is the greed of em
ployers for cheap labor, enhanced by every improve
ment in machinery of the kind that makes the work
ofchildren available; and enhanced, also, by the very
cheapness of the children to such an extent as to
delay the introduction of n e w machinery if its in
stallation is costly. This greed is exhibited in its
most odious form in the glass industry, the textile in
dustry, and the sweating-system. It knows no
restraints except those of effective legislation en
forced by enlightened public opinion, as is shown by
the action of those Northern cotton mill m e n w h o
obey the laws of Massachusetts and N e w York in
their mills in those states, but in Georgia fall to the
level of their local competitors, employing children
ten yearsoldand less, throughouteleven hours a day.
A third cause of child labor is the greed of the
community in desiring to keep d o w n the cost of
maintenance of its dependent class. This greed dis
guises itself under the form of solicitude for the
moral welfare of the children. Justas the managers
of the worst so-called reformatories insist that chil
dren must work under the contract system, “because
they must be kept busy to keep them from being
bad," so this solicitude for childish morals insists
that“ children mustnotbe habituated to dependence,”
quite forgetting that dependence is the quality be
stowed upon childhood as its distinguishing char
acteristic.
61

S O M E

ETHICAL

GAINS

A n y candid person, on being asked, " W h a t virtues
m a y be reasonably expected of children?” must reply
that we do not yet know. O u r studies of the p s y
chology of childhood are still so imperfect and
inconclusive that it is not safe to dogmatize in this
field.
But by a process of elimination itis possible
to arrive at certain conclusions which seem worth at
least careful consideration.
Thus, observation of so-called self-made m e n s u g
gests a serious danger that a child precociously self
respecting in the matter of earning his living m a y
p a y a high price, later in life, for his precocity. It is
proverbial that the employer w h o began life as a
working boy and through continuous exertions rose
to power and responsibility, is apt to be a ruthless
employer. The unnatural strain of his o w n early ex
perience seems to entail this penalty upon his char
acter and consequently upon his unhappy employees.
Self-respect due to self-maintenance seems to be a
virtue suitable to the later years of adolescence and
to adult life,-never to childhood. Moral precocity
seemstobe quitegenerally followed by exhaustion or
by reaction taking the form of greed, rapacity and
calculating self-seeking.
Just as excessive fatigue, or habitual loss of sleep
in childhood is punished in later life by the craving
for stimulants, and by nervous insufficiency m a n i
festing itself in the most diverse ways,-so the bur
den of industrial employment borne in early, tender
years, disables the boy or girl for enlightened, self
supporting citizenship in later life.
To impute a virtue not normal to childhood and
62

CHILD, STATE

A N D

NATION

then insist that the children shall live up to adult
standards applied to that virtue, is perverted, and
injurious alike to the community which follows this
course and to the children w h o suffer under it. If
the burden of self-maintenance or the attempted
maintenance of others is placed upon young chil
dren,-if child labor is tolerated,—the ethical stand
ards of the community are bad. For a task which is
normal and right for adults cannot be performed by
children without sacrificing in the process their fu
ture usefulness to the Republic.
The insistent plea that children must work in order
thattheymayacquirehabits of thrift and attain pros
perity for themselves and their families is uttered
with greatest persistence by the employers w h o
profit by the labor of the children. It is the glass
manufacturers w h o voice this tender solicitude for
the moral well-being of the wage-earning children
in N e w Jersey and Pennsylvania, when there is a
growing movement in those states for prohibiting
night work, as it has been prohibited in Illinois. In
the South, itis the cotton-mill owners and their legal
advisers w h o insist that little children from the
mountain farms must toil eleven hours a day in the
mills of Georgia, working throughout the night
whenever itm a y be useful to their employers to have
them do so.
These pleas are heard with willing ears by c o m
munities which begrudge money for the maintenance
of schools and the assistance of dependent widows
and orphans; and not without good reason. No
soonerhad the n e w law of N e w Jersey required chil
63

S O M E

ETHICAL

GAINS

dren to attend school to the fourteenth birthday, and
prohibited boys under that age from working in
manufacture, than itbecame necessary tobuild a n e w
schoolhouse in a suburb of Millville, to accommodate
the boys turned out of the glassworks. In Alton
the enforcement of the child labor law of 1893 led
to the immediate construction of a n e w schoolhouse
for the children freed from the glassworks, and to
the reopening of a building which had long been out
ofuse. Wherever children are freed from work, the
community must provide for them schools, teachers,
attendance agents, factory inspectors and all those
officials and provisions which are essential to the care
and defense of childhood under the pressure of the
competitive system.
Besides being essentially immoral, the effort to
burden young children with the task of self-mainte
nance is doomed to failure, for under existing con
ditions a child does not, and cannot achieve complete
self-maintenance. The three great series of indus
tries in which children are largely employed,—the
textiles, glass-making and the needle-trades,—are
parasite trades. They are all protected by tariffs for
the advantage of the employers;—and by more or
less stringent trade regulations for the advantage of
the adult male employees. In the case ofthe needle
trades, there are lavish subsidies from the public
treasury of N e w York City, the great center of the
needle-trades for the western hemisphere. By the
help ofthese subsidies, sewing is done by the inmates
of institutions erroneously called private, whilemain
tained by the taxes of the community, at rates with
64

CHILD, STATE

AND

NATION

which no private manufacturer can long compete.
But more insidious than all these contributions to
the parasite industries is the steady contribution of
underpaid work from children w h o
wages too small to support them.

carry home

Parents become willing to exert themselves less
when the eldest boy and girl begin to contribute
something towards the family maintenance, and are
not strenuous in the demand that the child's wage
shall afford self-support. “Every little helps,” is
the hand-to-mouth consideration with which the
hard-worked immigrant withdraws his son or
daughter from school on the first day that the law
allows.
The

unthinking community

tends to approve

every exertion in the direction of money earning on
the part of those w h o are most nearly at the line of
submergence, asking no questions as to the ultimate
effect upon the future citizen.
The oncoming generation neither knows nor cares
what burden of incapacitated members the present
generation is preparing for it. But the burden will
have to be borne, just in proportion as the children
of to-day are deprived of the right to childhood.
A n d nothing is more surely handed d o w n than the
callous indifference of the mass of the people to the
causes of that destitution which is an intrinsic part
of the life of every manufacturing community;-as,
for instance, the death or disability of the bread
winner, or the widespread and ever-increasing cus
tom of desertion by the fathers of burdensome young
children.
5

65

S O M E

ETHICAL

GAINS

Thus the essentially immoral effort to place upon
the children the burden of self-maintenance not only
fails at the moment,-it reacts injuriously upon the
community, preparing for the next generation an
undue share of incapacitated members, bequeathing
tothe futurea largeproportionof unfitand incapable
citizens, and finally generating, a m o n g the people at
large, indifference to the causes of deathor disability
of the breadwinner.
On the other hand, with the growing recognition
of the right of the child to maintenance and educa
tion throughout a prolonged period, goes a lively in
terest in the health and welfare and probity of the
normal breadwinner, w h o is theoretically responsible
for its support.
In other words, while the demand for child labor
is an economic one, the causes of its persistence are
moral and social and are rooted in the false ideals of
parents, employers, taxpayers, and all those indiffer
ent people w h o care nothing what citizens are being
trained forthe future life ofthe Republic.
Consequences of Recognition of the Child's
Right to Exemption from W o r k . W h e r e v e r the
community recognizes the right of the children to
freedom from labor, the question of maintenance
comes to the front and the widows and dependent
orphans loom large in the imagination of the kindly.
On the otherhand, where the effort is made to place
the burden of maintenance upon youngchildren, the
loss of the breadwinner appears of less vital im
portance to the community. Tuberculosis, carrying
off heads of families, burdens the manufacturing
66

CHILD, STATE

AND

NATION

communities of the United States annually with
thousands of widows and orphans. Preventable
deaths ofbreadwinners in the railway service burden
in the same w a y the communities in which their
families live.

If n o w , these communities face the

task of cherishing the children and educating them
throughout childhood to full fitness for citizenship,
the problem of orphanage relates itself, in a new and
vital way, to the question of the prevention of n e e d
less deaths of m e n in the prime of life. Orphanage
becomes recognized, not as an accident or an inevi
table misfortune for the individual family, to be
borne with what fortitude can be s u m m o n e d ; but as
a social and industrial phenomenon, a burden to be
minimized by preventive and precautionary m e a s
ures.

It is not accidental that Massachusetts, the

state which has longest guarded the right to child
hood, is also the state in which the safety of life and
limb of the adult worker is best safeguarded by
statutory provision.
The enforcement by the Interstate Commerce
Commission of statutes providing for life-saving
devices to be used upon railways, has undoubtedly
diminished the preventable deaths of breadwinners,
reduced the number of orphans, limited the tempta
tion to exploit young children, and thus reacted in
an important w a y to the ethical gain of the nation,
quite aside from its direct value to the railway em
ployees.
W h e n youngchildren aremadeineligible as bread
winners, the responsibility is placed where itbelongs,
upon their parents or upon the community. A n d
67

S O M E

ETHICAL

GAINS

there is nothing more moralizing going on at present
in the United States than this shiftingof responsibil
ity from the weaker to the stronger.
H a n d in hand with restriction upon the work of
little children goes increased care to prevent the im
portation into the state of dependent and delinquent
boys and girls. Thus, for instance, Illinois and
Michigan have n o w rigid statutes prohibiting bring
ing into those states any child whose futuremainte
nance is not provided for either by the presence of
an accompanying parent or guardian, or by a bond
furnished by an incorporated society for the care
and guardianship of the child. Recent revelations
of the importation of boys from one state into an
other, for the use of glass manufacturers, show an
urgent need for similar care on the part of all states
in which this industry flourishes. Just as the textile
mills, in the days of Sir Robert Peel's act, s o u g h t a p
prentices a m o n g the little children in the workhouses
of England, so the glass manufacturers, to-day, seek
orphans and other detached boys from poorhouses
and voluntary charitable bodies; and the traffic in
such boys goes forward where it is not checked by
legislation and by the coöperation of labor organiza
tions and child labor committees workingtogether.
W h e n the orphans are scrutinized and provided
for, it becomes clear that the problem of child labor
is really not the problem of the orphan. It is the
problem of cheap hands for the employer of cheap
labor;—the problem of permitting to selfish parents
the luxury of absorbing the premature earnings of
young children.

But it is the pride of the enlight
68

CHILD, STATE

A N D

NATION

ened employer that he supplants h u m a n labor with
mechanical devices as rapidly as ingenuity enables
him to do this; and every restriction upon the supply
of children in the labor market

stimulates this

process.
It is clearly the duty of the parent to support his
children; that is his obligation to the Republic. He
must insist upon wages sufficient to enable him to do
this; and the withdrawal of thousands of young chil
dren from competition with adults contributes to his
ability to make his o w n terms for wages wherewith
to support his o w n . An aged Welsh miner, of the
writer's acquaintance, w h o had emigrated to Illinois,
once related upon the floor of the state legislature, of
which he was a member, his o w n experience in this
respect. In Wales, he and his wife and two little
sons had all worked underground, making the barest
living. It was proposed to prohibit the work of
w o m e n and children underground and he was filled
with consternation lest they all starve. But the law
was passed, the wife and children, instead of mining
coal, lived above ground, the children attending
school and the wife cultivating a garden; and within
twelve months the father of the family was earning
more than all four persons had previously earned by
their combined labor. Soconvinced was the speaker
that his experience was typical of the depressing
effect of the work of w o m e n and children in unsuit
able occupations, that he convinced his colleagues,
who passed unanimously the pending child labor bill.
The practical value, to the state and to the chil
dren, of effective child labor legislation is well illus
69

S O M E

ETHICAL

GAINS

trated by a comparison of the employment of chil
dren in N e w York, Pennsylvania and Massachusetts.
W h e n rated according to their population and the
value of their manufactured products, the two lead
ing states are N e w York and Pennsylvania, the
former excelling in both respects according to the
census of 1900. In the number of children under
the age of sixteen years engaged in manufacture,
these states excel all the others, as appears from the
following table of states having more than five thou
sand such children.
CHILDREN UNDER 16 YEARS OF AGE ENGAGED IN M A N U
FACTURE
Pennsylvania
33,135
New York
13,189
12.556
Massachusetts
Illinois
10,419
North Carolina
10,377
8,560
South Carolina
New Jersey
8,042
Georgia
6,373
Maryland
5,884
5,679
Wisconsin
Rhode Island
5,036
In this table, however, it is Pennsylvania which
comes first and N e w York which takes second place,
there being 33,135 children under the age of sixteen
years engaged in manufacture in Pennsylvania, c o m
paredwith 13,189childrenunderthatage inthestate
of N e w York, a difference of 19,946. This does not
include children engaged in commerce and mining;
- d o e s not take into account mine boys or breaker
1These figures are found in the Census, 1900, Manufactures,
Part II, Statesand Territories, p.987.
70

CHILD, STATE

A N D

NATION

boys, office boys, newsboys, bootblacks, peddlers, de
livery boys, cash children, or children w h o work out
of school hours while regularly attending school. It
is strictly a statement of the children employed in
manufacture in both sta es.
The astonishing excess of children employed in
Pennsylvania is emphasized by the circumstance that
N e w York has not only a larger population but a
larger total value of manufactured goods than P e n n
sylvania. H o w then is the fact to be explained that
Pennsylvania employs in manufacture two and o n e
halftimes as m a n y children as N e w Y o r k ?
O n e explanation m a y be found in certain differ
ences in the child labor laws in force in the two
states for several years preceding 1900. Thus in
Pennsylvania children entered upon factory work a
year earlier than they had been permitted to do in
N e w York since 1889, the age for beginning work
having been, until M a y , 1905, thirteen years in
Pennsylvaniaand fourteenyears in N e w Y o r k .
In Pennsylvania, a child was not, before 1900, re
quired to be able to read and write before beginning
to work in a factory. In N e w York, since 1893, i
child under sixteen years of age mustbe able to read
fluently and write legibly simple sentences in the
English language before it can legally enter a
factory.
In N e w York a minor under the age of sixteen
years cannot legally be employed in a factory after
nine o'clockat night; in Pennsylvania, boys and girls
alike could, until M a y , 1905, at the age of thirteen
years be employed ten hours six nights in the week.
71

S O M E

ETHICAL

GAINS

Even yet, boys of fourteen years m a y be employed
all night in the glass industry and in certain other
branches
There was greater difficulty in N e w York in ob
taining the certificates required to be filed with the
employer before a child m a y legally begin to work.
In Pennsylvania, the parent was required merely to
make oath as to the age of the child before any
notary, and, until M a y , 1905, the affidavit thus made
protected the employer against prosecution for viola
tion ofthe child labor law, while theparent was n o m
inally liable to the charge of perjury if the age of the
child was falsely stated.
In N e w York, since 1896, the affidavit of the par
ent is only one of three assurances of the child's age
and qualifications which must be included in the cer
tificate deposited with the manufacturer. The pa
rental oath must be supplemented by the written
statementoftheteacherthatthe childhas regularly
attended a school in which instruction is given in
reading, writing, arithmetic,geographyand English
g r a m m a r ; and this must be farther strengthened by
the statement of the officer of the board of health,
w h o alone can issue the certificate, that he is satisfied
that the child is fourteen years of age.
This provision, in force from 1896 to 1903, has
n o w been supplanted by a more drastic one. In the
years 1896-1900, however, the threefold requirement
probably contributed to keep d o w n the number of
working children in N e w York compared with the
lax issuanceofaffidavits by notaries in Pennsylvania,
with no other check than the fear of a remotely pos
72

CHILD, STATE

AND

NATION

sible prosecution of the parent on the charge of
perjury.
Briefly stated, the differences appear to be these.
In Pennsylvania, a child of thirteen years could,
until M a y , 1905, work in a mill at night without
breaking the law. In N e w York, a child m a y not
begin to work under the age of fourteen years; an
illiterate child m a y not workunderthe age ofsixteen
years; and a minor under eighteen years m a y not
work after nine o'clock at night in manufacture.
Moreover, the factory law is better reënforcedby the
compulsory education law in N e w York than in
Pennsylvania.
In N e w York for several years preceding the c e n
sus year, 1900, children between the ages of twelve
and fourteen years were required to attend school 80
days in the year. The Board of Health of N e w
York City refused to issue certificates to such as
had failed to complete the 80 days' attendance in the
year preceding the fourteenth birthday, sending such
children back to school to finish the uncompleted
term.
In Pennsylvania, children were, in the same years
before 1900, merely required to attend school 70 per
cent. of the school term in the district in which they
resided.
The results of these differences in the child labor
law and the compulsory education law are reflected
in two other tables of the Census of 1900 (printed
elsewhere in this chapter) according to which N e w
York had 4,740 illiterate children between the ages
of ten and fourteen years, compared with 6,326 such
73

S O M E

ETHICAL

children in Pennsylvania; and

GAINS
New

York ranks

fourteen in the scale of fifty-two states and terri
tories when measured by the percentage of children
between these ages w h o are able to read and write,
while Pennsylvania is number twenty in the same
scale.
The statistics of these two leading manufacturing
states are discussed thus in detail because they indi
cate both the need of farther legislative protection
for the children, and the gain which has already been
made in N e w York by the long enforcement of the
imperfect provisions of the earlier laws. For ten
years, beginning in 1893, N e w York is believed to
have been the only state which required children
under the age of sixteen years to be able to read
fluently and write legibly simple sentences in the
English language before permitting them to begin to
work for wages. The practical working of thispro
vision was illustrated when the first suit under itwas
brought against a clothing contractor in N e w York
City w h o had violated the law by employing a R u s
sian girl fifteen years of age w h o could neither read
Six weeks elapsed
nor write in any language.
after the arrest of the employer and the dismissal of
the child from work, before the case came up for
trial before the magistrate. The judge dictated to
the girl: " This house is built ofbricks,” by w a y of
a simple sentence to be written legibly. The child
promptly wrote: “ This hous is bilt of briks," and
the case was dismissed.

Theinspector,angryat los

ing his case, and puzzled at the child's speedy ac
quisition of the English language in words of one
74

CHILD, STATE

AND

NATION

syllable, made some investigation of the circum
stances and learned that, on the day following the
girl's dismissal from employment, she had entered
the public school, attending both the day and e v e n
ing sessions. She had also attended two different
Sunday schools, one in the morning and one in the
afternoon, and had taken books from the library.
Thus, in the space of six weeks, by specializing
strictly upon learning English, she had saved her
employer a heavy fine, and had prepared herself to
resume her work in his shop according to the re
quirement ofthe law.
Recently the new statutes which requiremore e d u
cational preparation for work, prescribingthat every
boy must attend dayschooluntil the work ofthe fifth
year of the public school is finished and night school
to the sixteenth birthday or the completion of the
work of the eighth year, have brought to light sev
eral instances of the padrone system within the
families of immigrants.
A m a n and his wife imported a sister aged fifteen
years from Italy for the purpose of securing for the
wholly illiterate girl immediate work in a silk-mill.
W h e n it became clear that the child would not be
ready to comply with the n e w educational require
ments within a year the intention ofthe relatives was
betrayed by their cruel treatment of the dependent
girl.
There could scarcely be more undesirable i m m i
grants than half-grown, illiterate children brought
into the congested manufacturing centers by their
sordid relatives for the express purpose of crowding
75

S O M E

ETHICAL

GAINS

into factories and sweat-shops. It is a m o s t valuable
function of child labor legislation to discourage the
immigration of families coming to this country for
the purpose of exploiting their children in the tex
tile mills, the street trades and other undesirable
occupations. However welcome immigration m a y
be to the employers and the transportation c o m
panies, it is a valuable addition to the national life
only so far as the immigrant children can be made
into trustworthy American citizens. To check that
form of the padrone system which consists in bring
ing young sisters-in-law and brothers-in-law to this
country for the purpose of sending them into silk
mills, or hiring them out tomaster boot-blacks under
the pretense that they are dependent orphans, is one
of the beneficent functions of compulsory education
laws and child labor laws,-though of course a
merely incidental feature of such legislation. The
correspondence between the Italian and Russian
colonies in America, and the relatives remaining in
the old country, isso continuous, that the new educa
tional requirements of the State of N e w York will
be well k n o w n on the other side of the ocean within
a yearand m a y well be regarded as one of the wisest
forms of restriction upon undesirable immigration.
The state of N e w York welcomes immigration on
the largest scalethat theworld has everbeheld. But
ithumanely insists that the immigrant must meet the
terms prescribed by the state, which include m a i n
taining his children until they can read and write
English, even though that keep them at school and
away from work until the sixteenth birthday.
76

CHILD, STATE

A N D

NATION

The same general result was observed in Chicago,
in the fall of 1903, after the enactment of a similar
provision in Illinois. A professional beggar was
seen taking his children to school. A friendly
visitor w h o had labored in vain for seven years to
induce him to let them go to school, was greatly in
terested in the changeand, on inquiringabout it, was
told by the beggar that the children would soon be
old enough to go to work, but would not be granted
the necessary papers unless they had proper certif
cates of school attendance. The statute thus reën
forces the parental sense of duty when that is under
the heaviest pressure of temptation to exploit young
children, in a strange land, in dire poverty, in the
helplessness of illiterate adults out of work and in
need of reënforcement of all kinds.
A comparison of the status of child labor in
Massachusetts and in Pennsylvania confirms the
opinion thatlegislationhaslongbeengradually bene
fiting both the children and the community just in
proportion as it has been effectively stringent. It is
not accidental that Massachusetts had in 1900 12,556
children in hermills compared with 33,135 in P e n n
sylvania. The textile industry in both states calls
for children. In Massachusetts, the public c o n
science has registered gradually throughout a series
of years, and the restraints imposed by frequently
amended legislation have kept the number of w o r k
ing children from growing rapidly. In Pennsyl
vania there were, until M a y , 1905, only the most
meager changes in the factory law since its enact
ment in 1889.

In Massachusetts, a child cannot
77

S O M E

ETHICAL

GAINS

legally work in a mill under the age of fourteen
years. In Pennsylvania, it could, until M a y , 1905,
legally enter a mill on the thirteenth birthday, and
defects in the wordingof the law facilitated perjury
to such an extent that children were found in textile
mills and tobacco factories at the age of ten years.
In Massachusetts, a w o m a n or minor under eighteen
years of age cannot legally work in a mill after ten
o'clock at night; but in Pennsylvania whosoever
could work at all, could work all night, little girls
only thirteen years of age included. In this respect
Pennsylvania compared unfavorably, as has been
pointed out, with Alabama, whose n e w law restricts
to eight hours at night the work of children between
the ages of thirteen and sixteenyears. It is not g e n
erally known thatthere was a serious danger to little
girls arising from the custom, which prevailed in
some Pennsylvania mills where night-work was
done, of turning the children out into the dark, at
midnight during the w a r m weather, just as em
ployees are expected to go forth at noon w h e n w o r k
ing on the day shift. The associations of such little
girls, at such hours, in such surroundings, are a fit
subject, not only for painful contemplation, but for
the most vigorous action of all persons interested in
the prevention of one of the direst forms of cruelty
tochildren.
Undeterred by the competition of textile mills in
less progressive states, as, for instance, Pennsyl
vania and Rhode Island, Massachusetts excelled all
rivals in her statutory care for children employed in
manufacture, from 1874 to 1903. In the latter year
78

CHILD, STATE

A N D

NATION

N e w York and Illinois enacted laws which went be
yond the provisions of Massachusetts, both in the
educational requirements exacted of children before
going to work, and in the hours of their labor.
In 1904, Governor Bates appointed a Committee
on the Relations of Employer and Employee, c o n
sistingof Carroll D. Wright, United States C o m m i s
sioner of Labor, Davis R. D e w e y , of the M a s s a
chusetts Institute of Technology, Henry Sterling,
Royal

Robbins

and

William N. Osgood.

These

gentlemen embodied in their report, dated January
13, 1904, a series of recommendations with regard
to the employment of children which, if enacted into
law, would still leave Massachusetts fourth in rank
a m o n g the states when ranged according to the
length of the working day permitted to children
under the age of sixteen years. They say: " F r o m
such inquiries as we have been able to make we do
not believe that the manufacturing interests of the
statewouldbeseriouslyaffectedby the extended p r o
hibition of night labor after 7 P. M. to all children
. The arguments
under sixteen years of age.
in favor of shutting children out from night-work
areso obviousthat they donotneed extended discus
sion, nor does itappear that one kind of employment
should be favored as against another. The physical
andmoral advantagestobe gained by exclusion from
night-work are c o m m o n to all children. We there
fore recommend thatnochildren under sixteen years
be permitted to engage in any gainful occupation be
tween 7 o'clock in the evening and 6 o'clock in the
morning.”

7
9

S O M E

ETHICAL

GAINS

The extended restriction of the hours of young
mercantile employees to 58 in one week during the
month ofDecemberbecame law in 1904, but children
m a y still be employed in stores and mills to ten
o'clock at night provided they do notwork morethan
58 hours in the week.
The significant point is that the Committee does
not recommend that the hours of labor of children be
at once reduced to eight in one day as in Illinois, or
to nine in one day as in N e w York and Delaware, or
to fifty-five in one week as in N e w Jersey. On the
contrary, the Committee said: "Inasmuch as the
labor of children in some industries interlocks with
the labor of adults w h o n o w work ten hours per day,
we fear that such restriction would practically result
in the discharge

of children from

employment.
Such an outcome would be unfortunate, unless chil
dren were forced to attend school by a change in the
compulsory school law already referred to. We
therefore do not favor consideration of legislation
further limiting the number of hours of labor until
that question is reported upon by the State Board of
Education.”
It is never to be forgotten that, hitherto, M a s s a
chusetts has fearlessly gone forward in her course
of educating and protecting her children regardless
of the action of other states and their competing in
terests. Neither, however, is it to be forgotten that
there are n o w more spindles in the cotton industry
south of M a s o n and Dixon's line than north of that
1Report of Committee on Relations of Employer and Em
ployee, 1904, Boston, pp. 32, 33, 34.
80

CHILD, STATE

AND

NATION

line; and that the pressure of Southern competition
renders it increasingly difficult to maintain the posi
tion already achieved by Massachusetts. The en
forcement of existing requirements becomes more
burdensome as the reductions in wages of adults
incite parents to perjured affidavits stating that chil
dren are older than they really are, in order to add
the child's wage to the decreasing family income,
and the force ofthe statute is thus undermined.
Inter-State Aspect of the Right to Childhood.
-Hitherto the right to childhood has been consid
ered in the light of the experience of children in cer
tain occupations, and in the light of the legislative
provisions of certain states for protecting children
from too early toil. The broader question, what the
people of this nation as a whole are doing to assure
to the Republic, a generation hence, an intelligent
citizenship, has scarcelybeen formulated. The ques
tion is, however, compendiously answered by two
tables of the United States Census of 1900, which
have not yet received that general and widespread
discussion which their significance renders im
perative.
The first table shows the percentage of children
betweenthe ages of ten and fourteen years w h o were
able to read and write, in 1890and in 1900. Except
Nevada, whose Indian children were first included in
1900, all the states havebeen reducingthe percentage
of illiteracy. The figures upon which the percent
ages are based are given in a second table, wherein
the states aretwice arranged, once alphabetically and
again in the order of the ability of thechildren to
6
81

S O M E

ETHICAL

GAINS

read and write, those states being grouped at the top
whichhave the least number of illiteratechildrenand
those states grouped at the bottom which have the
largest number of illiterate children.
PER CENT. ABLE TO READ AND WRITE AMONG PERSONS IO TO
14 YEARS OF AGE
1900
1890
99.23. I
1 1. Nebraska
99.66 Iowa
2. Iowa
99.17. 2
99.63 Massachusetts
99.58 Ohio
98.92. 3
3. Oregon
4. Ohio
99.51 Kansas
98.86. 4
5. Kansas
98.79.5
99.48 Connecticut
6. Indiana
99.45 Illinois
98.75. 6
99.43 Nebraska
7. Connecticut
98.75. 7
8. Utah
99.34 New York
98.62. 8
99.33 Wisconsin
9. Massachusetts
98.35. 9
99.30 Minnesota
10. Michigan
98.21. 10
II. Washington
98.20. II
99.30 Oregon
12. Minnesota
99.29 Michigan
98.17. 12
99.27 Indiana
13. Wisconsin
98.00. 13
14. New York
99.26 California
97.93. 14
15. Illinois
99.18 N e w Jersey
97.86. 15
97.82. 16
99.08 Pennsylvania
16. Wyoming
17. Vermont
97.75. 17
99.05 Washington
18. South Dakota
99.00 Maine
97.57. 18
19. California
...98.99 Vermont
97.57. 19
98.99 South Dakota
97.55. 20
20. Pennsylvania
21. New Jersey
98.81 Colorado ....
97.21. 21
22. Idaho ...
98.77 New Hampshire .. 96.63. 22
23. Colorado
98.48 Montana
96.47. 23
96.24. 24
24. New Hampshire .. 98.31 Utah
96.23. 25
25. Dist. of Columbia.. 98.25 Wyoming
98.12 Idaho
26. Rhode Island
96.18. 26
96.03. 27
27. Montana
98.07 Rhode Island
28. Maine
97.92 North Dakota
95.58. 28
29. North Dakota.
97.65 Dist. of Columbia. 94.61. 29
97.26 Missouri
30. Oklahoma
94.48. 30
82

CHILD, STATE

31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.

1900
Missouri
Delaware
Maryland
West Virginia
Nevada
Kentucky
Texas
Florida
Tennessee
Virginia
Arkansas
New Mexico
North Carolina
Arizona
Mississippi
Georgia ...
Indian Territory...
Alabama
South Carolina
Louisiana

96.64
95.49
95.36
94.74
91.88
91.56
90.74
86.24
85.08
84.33
83.80
80.07
78.25
77.79
77.62
77.21
75.61
71.11
70.44
67.12

A N D

NATION

1890
Nevada
Oklahoma
Delaware
Maryland
West Virginia
Texas
Kentucky
Florida
Tennessee
Arizona
Arkansas
Virginia
Mississippi
New Mexico
North Carolina
Georgia
Alabama
South Carolina
Louisiana

92.83. 31
91.81. 32
90.96. 33
90.54. 34
89.16. 35
85.55. 36
85.17. 37
82.43. 38
80.94. 39
79.62. 40
7789. 41
77.32. 42
73.47. 43
72.04. 44
69.38. 45
66.73. 46
64.50. 47
61.03. 48
57.26. 49

C E N S U S 1900
(Population, Vol. II, Part II, Table 65- Pp. 422)
ILLITERATE CHILDREN BETWEEN THE AGES OF 10 AND 14
YEARS IN Each STATE
Alabama
66,072 I. Wyoming
72
Alaska
1,903 2. Oregon
175
Arizona
209
2,592 3. Idaho
Arkansas
220
26,972 4. Utah
California
1,279 5. Nevada
275
287
742 6. Vermont
Colorado
Connecticut
435 7. Washington
340
Delaware
845 8. Montana
374
Dist. of Columbia..
398 9. Hawaii
394
8,389 10. Dist. of Columbia. 398
Florida
412
63,329 11. Nebraska
Georgia
436
394 12. Connecticut
Hawaii
83

S O M E
Idaho
Illinois
Indiana
Indian Territory.
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
N e w Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia ...
Washington
West Virginia

ETHICAL
209
4,044
1,453
12,172
883
878
21,247
55,691
1,255
5,859
1,547
1,741
1,365
44,334
11,660
374
412
275
557
2,069
4,354
4,740
51,190
836
2,048
1,295
175
6.326
691
51,536
472
36,375
35,491
220
287
34,612
340
5,819

13.

GAINS

South Dakota

14. New Hampshire..
15. Rhode Island
16. Colorado
17. North Dakota
18. Delaware
19. Kansas
20. Iowa
21. Maine
22. California
23. Oklahoma
24. Minnesota
25. Indiana
26. Massachusetts.
27. Wisconsin
28. Michigan
29. Alaska
30. Ohio....
31. New Jersey..
32. Arizona
33. Illinois....
34. New Mexico
35. New York......
36. West Virginia
37. Maryland
38. Pennsylvania.
.93adirolF

472
557
691
742
836
845
878
883
1,255
1,279
1,295
1,365.
1,453
1,547
1,688
1,744
1,903
2,048
2,069
2,592
4,044
4,354
4,740
5,819
5,859
6,326
8,389

11,660
40. Missouri .....
41. Indian Territory.. 12,172
42. Kentucky
21,247
43. Arkansas
26,972
34,612
44. Virginia
45. Texas
35,491
46. Tennessee
36,375
47. Mississippi
44,334
48. North Carolina
51,190
49. South Carolina .. 51,536
84

CHILD, STATE
Wisconsin
Wyoming

AND

1,688 50.
72 51.
52.

NATION

Louisiana
Georgia
Alabama

United States....579,947 United States

55,691
63.329
66,072
579,947

The vitally significant fact revealed by the first
table is the fall in the scale, between 1890 and 1900,
of the six great industrial states when measured by
the percentage of literacy of their children between
the ages of ten and fourteen years.
W h e n measured by the value of their m a n u f a c
tures, N e w York, Pennsylvania, Illinois, M a s s a
chusetts, Ohio, and N e w Jersey stand at the head of
the scale of the states in the order in which they are
here printed. W h e n measured by the percentage of
their children between the ages of ten and fourteen
years able to read and write, in 1900, these states
rank altogether differently. Thus N e w York, in
stead of being first is fourteenth ; Pennsylvania,
instead of being second, is twentieth; Illinois, in
stead of being third, is fifteenth; the other three are
Massachusetts, ninth; Ohio, fourth; and N e w Jersey,
twenty-first. N o r i s their position in this scale either
stable or improving. On the contrary, all the six
great states fell from a better relativeposition during
the ten years from 1890 to 1900. In 1890, N e w
York occupied the eighth place, Pennsylvania the
sixteenth, Illinois the fifth, Massachusetts the second,
Ohio the third, and N e w Jersey the fifteenth.

All

alike have fallen relativelytothe western states ( N e
braska, Oregon, Indiana, Utah and Washington),
which have correspondingly risen.
Pennsylvania and N e w Jersey seem to have c o m
85

S O M E

ETHICAL

GAINS

peted for theplace of dishonor at the foot ofthe list
of the six great industrial states. Pennsylvania oc
cupied that position in 1890, being then sixteenth in
the scale of all the states, and sixth and last of the
great industrial states. In 1900, N e w Jersey had
sunk from the fifteenth to the twenty-first place, and
n o w ranks one point below Pennsylvania, when
measured by the percentage of her children between
the ages of ten and fourteen years of age w h o are
able to read and write.
The relative fall of Massachusetts from the second
to the ninth place in the scale m a y be due to several
causes. The influx of French Canadian, P o r t u
guese, Italian, Russian, and Syrian children of the
ages between ten and fourteen years is large, and
would doubtless continue to depress the position of
Massachusetts in the table under consideration.
Moreover, Massachusetts was slow to raise the legal
age for beginning to work to fourteen years, and to
make attendance at school compulsory throughout
the full school year to the fourteenth birthday. Not
until 1905 did Massachusetts prohibit the employ
ment of illiterate children before the sixteenth
birthday.
Discouraging istheposition in thefirst tableofthe
four great Southern cotton manufacturing states in
whichlargenumbers ofyoung children areemployed
in manufacture. In none of the four are eighty per
cent. of the children between ten and fourteen years
of age able to read and write. Of the four, North
Carolina standshighest, as number forty-three in the
scale; followed by Georgia, forty -six; Alabama,
86

CHILD, STATE

AND

NATION

forty-eight, and South Carolina, forty-nine. Lowest
in the scale is Louisiana, fifty. Only one of them
has risen. North Carolina, which stood forty-five
in 1890, stands forty-three in 1900.
An interesting ray of light upon the child-labor
problem shines from the first table. The six great
industrial states whose descent in the scale it regis
ters, are exceptionally wealthy and progressive inall
other respects, but they arethe chosen h o m e of child
laboron a largescale.
Thefirsttable thus confirms the opinion that child
labor and illiteracy are coextensive, and that all these
factors, far from being local and to be dealt with by
a small group of Southern states, form a great and
growing series of national problems. The four
great manufacturing states of the South stand at the
foot of the scale of states when graded according to
the ability of children between the ages of ten and
fourteen years to read and write; and the six great
industrial states of the North are falling in that
scale, simultaneously and conspicuously. Surely
there is need oforganizedeffort, national in scope, to
ascertain the cause of so sinister a phenomenon, and
to remove that cause with the least possible loss of
time.
In the second table there are m a n y significant
points, one being the position of the six leading
manufacturing states, N e w York, Pennsylvania, Il
linois, Massachusetts, Ohio and N e w Jersey, all
nearer the bottom of the scale than the top, with the
single exception of Massachusetts which is twenty
sixth in the scale of fifty-two.
87

The other five are

S O M E

ETHICAL

GAINS

all in the third group, ranking as follows:

Ohio,

thirty; N e w Jersey, thirty-one; Illinois thirty-three;
New York, thirty-five; and Pennsylvania, thirty
eight.
W h e n placed according to the actual number of
her illiterate children, Pennsylvania stands lowest
a m o n g the six leading manufacturing states and
ranks with the states of the South, coming after
Maryland
Florida.

and

West

Virginia

and

next

above

Taken together, the six leading manufacturing
states had, in 1900, 20,774 illiterate children between
the ages of ten and fourteen years, distributedas fol
lows:
Massachusetts
Ohio
NewJersey
Illinois
New York
Pennsylvania
Total

1,547
2,048
2,069
4,044
4,740
6,326
20,774

It is, of course, to be observed that the six leading
manufacturing states receive a vast immigrant p o p u
lation. O n e conclusion derivable from the table
seems, therefore, to be this: that since these states
attract immigrants whose children tend to remain il
literate, itis necessary to take energetic measures for
dealing with those children; such, for instance, as
the requirement that they must learn to read and
write Englishbefore leaving school tobegin to work.
It is conceivable that such a requirement, universally
and effectively enforced, might permanently remove
88

CHILD, STATE

AND

NATION

one incentive to immigration on the part of the least
desirable immigrants— i.e., the hope for wages to be
earned by illiterate young children.
In this table, as in the percentage table, it is the
great cotton states of the South which constitute the
foot of the scale, North and South Carolina, Louis
iana, Georgia and Alabama.
The more closely the two lower groups of states
are scrutinized, the clearer the inference becomes that
the problem of child labor and child illiteracy are
twin problems, and that together they demand for
their solution no mere sectional effort, but the vigor
ous determination of the whole people that the years
of childhood shall be held sacred to the work of e d u
cation, free from theburden ofwage-earning.
The states which stand at the foot of the scale in
both tables are Arkansas, Virginia, North and South
Carolina, Mississippi, Louisiana, Georgia and A l a
bama. These states have no compulsory education
laws. They are the states which are commonly
designated as the " N e w South " in discussions of in
dustrial development, particularly in the cotton
industry. In them manufacture increases by leaps
and bounds while legislation lags behind. As has
been pointed out, Georgia deliberately voted at t w o
sessions of the legislature of 1903 to adopt a position
ethically lower than that of England at the time of
the enactment of Sir Robert's Peel's act, in 1802.
The n e w laws of North and South Carolina, Ala
bama and Virginia approximatecloselytothe factory
acts of England in 1842, except that the English laws
provided for factory inspectors, which the Southern
89

I

S O M E

ETHICAL

GAINS

states have not yet done. It is with the competition
of such communities that Massachusetts has to do
when her Committee on the Relations of Employer
and Employee recommend the consideration of the
feasibility of raising the age for compulsory school
attendance to fifteen years, and defer recommending
any shortening of the hours of labor of children be
yond the limit of fifty-eight hours in one week. In
view of facts like these, the child labor problem can
never again be regarded as a local problem. It is
the problem of the nation as a whole.
The foregoing somewhat desultory observations
upon the effort made to establish the right to child
hood, reveal h o w far the whole still falls short of
any clear policy of cherishing all future citizens as
such in the interest of the Republic.
All legislation thus far has been a series of c o m
promises achieved by stirrings of the public c o n
science concerning some one enormity here and
there. On one side the demands of employers for
cheap labor are reënforced by the pressing poverty
of parents; and on the other, there has until recently
been only the inarticulate child, not always even
aware of the injury he was suffering. Then came
the trade union eager to be rid of the child in indus
try, perhaps for the child's good, perhaps in the in
terest of better wages for the adult competitors.
Only sadly recently has the philanthropist come for
ward as a person to be reckoned with, and last of
all, thepurchaseroftheproduct, demandingthepriv
ilege of buying with a clear conscience the goods for
which he pays.
9
0

CHILD, STATE

A N D

NATION

The resultant patchwork quilt of statutes leaves
the children unprotected, as has been shown, in m a n y
places, and is nowhere adequate to the needs of the
children and the rapid development of industry. It
is the purpose of the followingpages to suggest what
seems reasonable to strive for during the decade
1900-1910.
Legislation Needed in the Near Future. - First
of all desiderata is uniformity a m o n g the states on
the basis of the best which has yet been achieved in
the most enlightened communities. For lack of uni
formity, progress has been hindered in many states,
notably in the glass industry which, during 1904,
successfully represented to the legislature of N e w
Jersey that, if deprived of the privilege of employing
boys underthe age of sixteen years at night, itwould
migrate to Delaware and West Virginia, where no
such restrictions yet await it.
In the interest of uniformity, it seems most prac
ticable to adopt as the m i n i m u m age for beginning
work, the fourteenth birthday, while endeavoring to
bring to this m i n i m u m all the children n o w engaged
in street occupations, hitherto exempt from restric
tions in nearly all states; and endeavoring, also, to
bring to this m i n i m u m the statutes of those states
which, as yet, prescribe no m i n i m u m age (Georgia),
or a m i n i m u m age of ten years (Nebraska), or
twelve years (Alabama, Louisiana, Maine, N e w
Hampshire, North Carolina, North Dakota, Texas,
and Virginia), or thirteen years (Rhode Island).
No one acquainted with the diminutive stature of
city children of the working class at fourteen years
91

S O M E

ETHICAL

GAINS

ofage,canregard theadoption of thisstandardmini
m u m age for beginning work as final.

It is merely

thebest attainable for the present and the immediate
future, in the evolution of child labor legislation.
In the century since the movement for child labor
lawsbegan with Sir Robert Peel's act, in 1802, effort
has been devoted chiefly to placing about the labor of
children restrictions based upon age or school at
tendance; and these have been found unsatisfactory
by reason of the willingness of parents to perjure
themselves. It isthe tendency of the present to c o n
sider the fitness of the child itself for the prospective
occupation. Under the present statute of N e w
York, for instance, a child must be “ of normal de
velopment and in sound health” before receiving the
certificate of the local board of health without which
itcannotlegallybegin to work.
As has been shown, effective legislation involves
the child, the parent, the employer, the officials
charged with the duty of enforcing the statutes, and
the community which enacts the laws, provides the
schools for the children when these are prohibited
from working, supports and authorizes the officers
w h o enforce the laws, prescribes penalties for their
violation and assists dependent families in which
children are below the legal age for work. In the
long run, the effectiveness of the laws depends upon
the conscience of the community as a whole far more
than upon the parents
together.

and the employer

taken

With the foregoing reservations and qualifications
duly recognized, the following schedules are be
92

CHILD, STATE

AND

NATION

lieved to outline the substance of the effective legis
lation which it seems reasonable to try to secure in
the immediate future. They deal only with the p r o
visions for the child as a child, taking for granted
the provisions for fire-escapes, safe-guards for ma
chines, toilet facilities and all those things which the
child shares with the adults.
An effective child labor law rests upon certainpro
hibitions, a m o n g which are the following:
LABOR IS PROHIBITED
( 1 ) for all children under the age of fourteen years,
( 2 ) for all children under sixteen years of age w h o
do not measure sixty inches and weigh eighty
pounds,
( 3 ) for all children under sixteen years of age w h o
cannot read fluently and write legibly simple
sentences in the English language,
( 4 ) for all children under the age of sixteen years,
between the hours of 7 P. M. and 7 A. M., or
longer than eight hours in any twenty-four
hours, or longer than forty-eight hours in
any week,
( 5 ) for all children under the age of sixteen years
in occupations dangerous to life, limb,health
or morals.
T H E CHILD
Effective legislation requires that before going to
1This measure is not now specified in any statute, though it
isimplied in the statute of New York, enacted in 1903. Bills
specifically embracing this provision were introduced into the
legislatures of Iowa and Louisiana in 1904.
93

S O M E

ETHICAL

GAINS

work the child satisfy a competent officer appointed
for the purpose, that it
( 1 ) is fourteen years of age, and
( 2 ) isin good health, and
( 3 ) measures at least sixty inchesand weighs eighty
pounds, and
( 4 ) is able to real fluently and write legibly simple
sentences in the English language, and
( 5 ) has attended school a full school year during
the twelve months next preceding going to
work.
T H E PARENT
Effective child-labor legislation requires that the
parent
( 1 ) keep the child in school to the age of fourteen
years and longer if the child has not c o m
pleted its required school work, and
( 2 ) take oath as to the exact age of the child before
letting it begin to work, and
( 3 ) substantiate the oath by producing a transcript
of the official record of the birth of the child,
or the record of its baptism, or some other
religious record of the time of the birth of
the child, and must
( 4 ) produce the record of the child's school attend
ance, signed by the principal of the school
which the child last attended.
T H E EMPLOYER
Effective child-labor legislation requires that the
employer before lettingthe child beginto work,
( 1 ) obtain and place on file ready for official inspec
tion papers showing
94

CHILD, STATE

A N D

NATION

(a) the place and date of birth of the child
substantiated by
( b ) the oath of the parent corroborated by
(c) a transcript of the official register of
births, or by a transcript of the record
of baptism , or other religious record
of the birth of the child, and by
( d ) the school record signed by the principal
of the school which the child last at
tended, and by
(e) the statement of the officer of the board
of education designated for the pur
pose, that he has approved the papers
and examined the child.
( 2 ) After permitting the child to begin to work, the
employer is required to produce the fore
going papers on demand of the school
attendanceofficer, the health officer and the
factory inspectors.
( 3 ) In case the child cease to work, the employer
must restore to the child the papers e n u m e r
ated above.
( 4 ) During the time that the child is at work, the
employer must provide suitable seats, and
permit their use so far as the nature of the
work allows; and must
( 5 ) post and keep posted in a conspicuous place,
the hours for beginningwork in themorning,
and for stopping work in the middle of the
day; the hours for resuming work and for
stopping at the close of the day; and all work
done at any time not specified in such posted
95

S O M E

ETHICAL

GAINS

notice constitutes a violation of the law.
The total number of hours must not exceed
eight in any one day or forty-eight in one
week.
T H E OFFICIALS
Effective legislation for the protection of children
requires that the officials entrusted with the duty of
enforcing it
( 1 ) give their whole time, not less than eight hours
of every working day, to the performance of
their duties, making night inspections w h e n
everthismaybenecessary toinsure thatchil
dren are not working during the prohibited
hours; and
( 2 ) treat all employers alike, irrespective of polit
ical considerations, of race, religion or power
in a community;
( 3 ) prosecute all violations of the law;
( 4 ) keep records complete and intelligible enough
to facilitate the enactment of legislation suit
able to the changing conditions of industry.
T H E SCHOOL
The best child-labor law is a compulsory education
law covering forty weeks of the year and requiring
the consecutive attendance of all the children to the
age of fourteen years. It is never certain that chil
dren are not at work, if they are out of school. In
order to keep the children, however, itis not enough
to compel attendance,—the schools must be modified
and adapted to the needs of the recent immigrants in
the North and of the poor whites in the South, af
96

CHILD, STATE

A N D

N A T I O N

fording instruction which appeals to the parents as
worth having, in lieu ofthe wages which thechildren
are forbidden to earn, and appeals to the children as
interesting and attractive.

These requirements are

so insufficiently met in the great manufacturing cen
ters of the North, that truancy is in several of them ,
at present, an insoluble problem. No system of
child-labor legislation can be regarded as effective
which does not face and deal with these facts.
The evolution ofthevacation school and c a m p and
play centers promises strong reënforcement of the
child-labor laws, which are n o w seriously weakened
by the fact that the longvacation leaves idle upon the
streets children w h o m employers covet by reason of
the low priceoftheir labor, while parents, greedy for
the children's earnings and anxious lest the children
suffer from the life of the streets, eagerly seek work
for them. Nothing could be worse for the physique
of the school child than being compelled to work
during the s u m m e r ; and the development of the
vacation school and vacation c a m p alone seems to
promise a satisfactory solution of the problem of the
vacation of the city childof the workingclass.
T H E COMMUNITY
Effective child-labor legislation imposes upon the
community m a n y duties, a m o n g which are
( 1 ) maintaining officials - m e n and w o m e n - school
attendance officers, health officers, and fac
tory inspectors, all of w h o m need
( a ) salary and traveling expenses,
7

97

S O M E

ETHICAL

GAINS

( b ) access at all reasonable times to the
places where children are employed,
(c) power to prosecute all violations of the
statutes affecting working children.
( d ) tenure of office so effectively assured
that they need not fear removal from
office in consequence of prosecuting
powerful offenders;
( 2 ) maintaining schools in which to educate the
children w h o are prohibited from working;
( 3 ) maintaining vital statistics, especially birth
records, such that the real age of native chil
dren m a y be readily ascertained;
( 4 ) maintaining provision for the adequaterelief of
dependent families in which the children are
not yet of legal age forbeginning work.
M o r e important, however, than the enactment of
the foregoing provisions is the maintenance in the
community of a persistent, lively interest in the en
forcement of the child-labor statutes. Without such
interest, judges do not enforce penalties against of
fending parents and employers; inspectors become
discouraged and demoralized; or faithful officers are
removed because they have no organized backing
while some group of powerful industries clamors
that the law is injuring its interest. Well-meaning
employers grow careless, infractions become the rule,
and workingmen form thehabit ofthinkingthat laws
inimical to their interest are enforced, while those
framed in their interest are broken with impunity.
U p o n parents there presses incessantpoverty, u r g
ing them to seek opportunities for wage-earning
98

CHILD, STATE

A N D

NATION

even for the youngest children; and upon the em
ployers presses incessant competition, urging them to
reduce the pay-roll by all means fair and foul. No
law enforces itself; and no officials can enforce a law
which depends upon them alone. It is only when
they are consciously the agents of the will of the
people that they can make the law really protect the
children effectively.
A United States Commission for Children.- If
the right to childhood is recognized, it follows that
the welfare of the children is a legitimate interest of
the nation, for the right restsupon the future citizen
ship of the children. The interest of the nation, as
such, has not hitherto found articulate expression,
and it is desirable that it should do so. It is there
fore suggested that there be constituted a C o m m i s
sion for Children, whose functions should be to cor
relate, make available, and interpret the facts con
cerning the physical, mental and moral condition and
prospects of the children of theUnited States, native
and immigrant.
The proposed commission might be composed of
m e n and w o m e n , representing different parts of the
country, for the purpose of promoting the vitaland
social efficiency ofthechildren ofthe United States.
It should do for the states, cities and smaller c o m
munities what the Department of Agriculture does
for the farmers,-make accessible to them the latest
word ofscienceand thelatestmethods ofapplying it.
The commission might coöperate with the Bureau of
Education, for instance, in disseminating facts as to
the grades in the public schools from which the chil
99

S O M E

ETHICAL

GAINS

dren leave, and the age of the children at the time of
leaving, in the different parts of the country; it
might coöperate with the Bureau of Labor in p o p u
larizing the principles upon which child-labor legis
lation should be furtherdeveloped; and with the C e n
sus Bureau in focusing attention upon the fact that
in 1900 there were in the Republic 579,947 illiterate
children between the ages often and fourteen years,
of w h o m about 510,000are in thirteen states, and the
remaining 70,000 are scattered throughout the re
mainder of the United States. For lack of a recog
nized national official body devoted to all the inter
ests of the children, the facts gathered by the three
above named departments remain uncorrelated and
largely unused. If they are applied at all, it is by
volunteer organizations which exist in some states
and are lacking in others, and any results obtained,
therefore, benefit the children in a part of the c o u n
try, but not in the whole country.
The problems suggested as forming, at first, the
probable field of work of the Commission are all
vital to the welfare of the Republic.

They are inter

related in such complex ways that itis very difficult
to state them in logical order. The following list is
purely tentative and is framed in the hope that it
m a y suggest constructive criticism .
PROBLEMS
1. Infant Mortality.
2. Registrationof Births.
3. Orphanage.
4. Desertion.
100

CHILD, STATE

A N D M A T I O N

5. Illegitimacy.
6. Degeneracy (sub-normal:childhood)
7. Delinquency.
8. Offenses against Children.
9. Illiteracy.
10. Child labor.
The imperative need of such a commission be
comes apparent as soon as the first problem, infant
mortality, is named.

If lobsters or young salmon

become scarce or are in danger of perishing, the
United States Fish Commission takes active steps in
the matter. But infant mortality continues exces
sive, from generation togeneration, inperfectlywell
defined areas;—yet no one organ of the national
government is interested in the matter sufficiently
even to gather, collate and publish consecutive in
formation about this social phenomenon. On the
contrary, infant mortality, however excessive, con
tinues to be generally regarded as a matter safely
left to the local officers whose incompetence or lack
of legal power it proves. Mere constructive criti
cism from an authoritative source, consecutively af
forded by the proposed commission, could not fail
to have a stimulating effect upon such local officials.
Orphanage is n o w generally recognized as a phe
nomenon social and permanent. To it is due m u c h
pauperism, delinquency and permanent degeneracy
a m o n g children. It is a matter of national impor
tance that continuous investigations should be car
ried on covering methods of safeguardingadult life;
-insurance, pensions for widows with young chil
dren, adoption

of

total orphans, asylums
IOI

and

S O M E

ETHICAL

GAINS

inetböds:0f:boardingout children.

The children

arethe future.Republic, the orphans no less than
those w h o have parents; and the maintenance of
their vital efficiencyis no less essential than the care
offish, forestsand IndiansbytheUnited States G o v
ernment.
With the development of disease and accidents in
cident to occupations the number of fatherless chil
dren in the working class increases.

No employers'
liability legislation yet devised has made adequate
provision for the maintenance of surviving little
children of workmen w h o perish.
Desertion and illegitimacy are phenomena which,
from the child's point of view, are to be classed with
orphanage. It isdesirablethatmethodsofenforcing
paternal responsibility should be devised to relieve
the cominunity of the support of children thus
cruelly and unnaturally fatherless.
The allied problems oforphanage, desertionand il
legitimacy connect on the one hand with the protec
tion of life, limb, health and morality of the adult
workers; and on the other with child labor, illiteracy,
degeneracy and delinquency.
While a few cities have established children's
courts devoted to the decision of cases affecting chil
dren, and probation officers for the care of juvenile
delinquents, it remains true that, in by far the larger
part of the country, the stockade or the county jail
is a school ofcrime for first offenders. On the other
hand, the widely prevalent method of crowding de
pendent and delinquent children together in institu
tions promotes both dependency and delinquency;
102

CHILD, STATE

AND

NATION

while the reckless placing out of children at a dis
tance from theirownoriginalhomes has its o w n seri
ous dangers. The indifference of local authorities
to these subjects of vital importance to the rising
generation is due chiefly to ignoranceof better ways.
But the desultory propaganda of volunteer bodies is
inadequate to securing within any calculable time,
improvements which might readily and rapidly be
brought about by the dissemination, with method
and continuity, of the needed information by a C o m
mission for Children.
Child labor can never again be regarded as a m a t
ter of local interest in a few states, with cotton mills
in the South, and canneries from Maine to the
Pacific, employing children at all hours, in ever
increasing numbers as the industries develop. The
lack of legislation in one state renders it excessively
difficult toestablish protective restrictions upon work
in another state having the same industries;—and
the worse inevitably checks progress in the better.
It is, at present, impossible to secure comprehen
sive, trustworthy, current information as to the c o n
ditionsof labor of children in the different states, ex
volunteer
cept by having recourse to some
organization which, in turn, secures its facts by
correspondence with the officials of fifty-two states
and territories. Moreover, the publications of pri
vate societies cannot assure the continuity of investi
gation which a Commissioncould give. It is be
lieved that the consecutive publications by a C o m
mission,ofthechild -labor lawsofthedifferentstates
in popular form (as the DepartmentofAgriculture
103

S O M E

ETHICAL

GAINS

furnishes in popular form information needed by
farmers), as rapidly as the laws are modified, might
be the means of securing approximately uniform
legislation in this important field within a few years.
The foregoing list of problems with the comments
upon them , are, of course, mere suggestions of what
a Commission would find awaiting it in the way of
investigation and dissemination of information on
behalf of the future citizens of the Republic.
Obviously the creation of such a Commission will
mark one more important recognition of the right to
childhood and will register one more ethical gain.

TO

C H A P T E R III

T H E R I G H T TO L E I S U R E
The effort to establish the right to leisure was a
distinctive movement of the nineteenth century, ac
companying the development of machinery. It as
sumed Protean forms, amongothers that of Sunday
rest, the Saturday half-holiday, Decoration Day,
LaborDay,Lincoln's Birthday,Washington's Birth
day, St. Patrick's Day, G o o d Friday, and Easter.
The early closing of the stores, wherever a c c o m
plished, is one result of this effort. The prohibition
of the work of w o m e n and minors at night was an
important aspect of the movement, and the effort on
behalf of child labor legislation is largely directed
towards securing fourteen free years for school and
wholesome growth before children enter upon the
life of steady work. In its most virile form , the
effort to establish the right to leisure was k n o w n as
the ten hours movement, and later as the eight
hours movement.
America having produced no great philanthropic
leader devoted to securing leisure for theyoung and
defenseless workers, no Lord Shaftesbury, the task
of establishing their right went by default to the
trade unions, to w h o m is due the credit for all child
labor legislation prior to the year 1889.
105

Now, h o w

S O M E

ETHICAL

GAINS

ever, the effort has become national in its scope,
enlisting the most diverse advocates. Mr. Grover
Cleveland and other members of the National Child
Labor Committee, and the General Federation of
W o m e n ' s Clubs, in striving to stop the work of
children at night in manufactureand commerce, are
as truly enlisted in behalf of the right to leisure as
are the miners in Colorado, the butchers in Chicago,
and the garment workers in N e w York. The Na
tional Educational Association, working to prolong
the period of compulsory attendance at school, and
the National Congress of Mothers, with its standing
committee on child labor, are pledged to the same
endeavor.

To educate the purchasing public to act

in considerate recognition of the right of the clerks
to leisure is one of the reasons for being of the
Consumers' League. However different the m e t h
ods of these diverse organizations, their goal is the
same,—the establishment of reasonable daily leisure
in the lives of working people.
The Supreme Court of the United States has
made plain the w a y by sustaining the constitution
ality of statutes establishing the working day of
eight hours for persons in the employ of the federal
government, in the employ of states or municipali
ties under contract, and in the employ of corpora
tions where the nature of the occupation m a y be in
jurious to health.
The establishment of universal leisure is increas
ingly recognized as a social aim, an effort to be par
ticipated in by all those w h o care for the social w e l
fare, and as a national effort, since, under the pres
106

T H E

RIGHT

TO

LEISURE

sure of competition, the conditions prevailing in any
industry must be as nearly uniform as possible, and
one part of the country cannot long maintain itself
far in advance of a different part having identical
industries, a truth which finds conspicuous illustra
tion in the experience of N e w England suffering
under the pressureof competition of the textile mills
of Georgia.
The struggle for the shorter working day is c o m
monly described as the effort of the laborer to give
as little exertion as possible in return for the pay
which he receives and m a n y workingmen passively
accept this statement of the animus of their m o v e
ment. It is, however, susceptible of interpretation
V
as the effort of wage-earning people to obtain, in
the form of leisure, a part of their share of the uni
versal gain arising from the increased productivity
of every occupation, and due to the incessant im
provement of machinery.
Obviously the characteristic feature of the indus
trial life of the nineteenth century was the unprece
dented increase in the output of all branches of
production. H u m a n needs were satisfied as never
before; famine was restricted before the close of the
century to portions of Russia and India, where m i s
government and imperfect means of transportation
together prevented the adequate production and cir
culation of foodstuffs. Clothing and fuel of n e w
and abundant kinds removed the fear of destruction
by cold. Shelter for people of all sorts and condi
tions underwent transformations undreamed of in
previous centuries.

The fundamental ethical ques
107

S O M E

ETHICAL

GAINS

tion of the century was, in essence, the equitable
distribution of these newly acquired possessions of
the h u m a n race.
More precious, perhaps, than any of those e n u
merated is the immaterial, imponderable h u m a n by
product,-leisure. Once the heritage and dis
tinctive privilege of a small class in any civilized
community, leisure was produced during the nine
teenth century in such abundance as to become the
accepted right of a large proportion of the people.
Yet, by reason of its inequitable distribution, it re
mained, in the crude and unsocial form of u n e m
ployed time, the bane and sorrow of large sections
of the working-class, w h o were constrained to de
vote generations of organized effort to regulating,
equalizing, and redistributing their working-time
and their free time, endeavoring to transmute acci
dental, unsocial idleness into regulated and benefi
cent daily leisure.
Assured daily leisure is an essential element of
healthy living. Without it childhood is blighted,
perverted, deformed ; manhoodbecomes ignoble and
unworthy of citizenship in the Republic. Self-help
and self-education a m o n g the wage-earners are as
dependent upon daily leisure as upon daily work.
Excessive fatigue precludes the possibility of well
conducted meetings of classes, lodges, coöperative
societies and all other forms of organized effort for
self-improvement. No experience of residents in
settlements in the congested districts of the great
cities is sadder than the disorganization which be
falls their eveningclubs and classes when Christmas
108

T H E

RIGHT

TO

LEISURE

approaches and the ablest young people are detained
for overtime work, the study and effort of the other
members is disorganized, and failure of the whole
undertaking often follows.
As machinery becomes increasingly automatic,
and the work of the machine-tender reduces itself
more completely to watching intently the wholly
monotonous performance of the one part confided
to his care, leisure becomes indispensable for him in
order to counteract the deadening effect upon his
mind exercised by his daily work. Instead of e d u
cating the worker, the breadwinning task of to-day
too often stupefies and deforms the m i n d ; and
leisure is required to undo the damage wrought in
the working hours,if the worker is to remain fit for
citizenship in the Republic. Without regular, or
ganized leisure, there can be no sustained intelli
gence in the voting constituency.
In those occupations in which long hours of work
prevail, the employees are obliged to live near their
place of work, and thatcongestion isthus intensified
which is one of the more unfortunate features of
life in large manufacturing cities. Shortening the
hours of labor gives to working people a wider
range of selection in the location of their homes,
thus benefiting wives and children as well as the
operatives themselves.
Daily assured leisure serves a purpose of the
highest social value by enabling the wage-earner to
husband that resource of nervous energy which is
required to continue active working-life after the
passing of youth.

In the garment-trades, m e n are
10g

S O M E

ETHICAL

GAINS

old at forty and w o m e n are superannuated at thirty,
largely by reason of the alternations of overwork
and enforced idleness, and the absence of that regu
larly recurring sufficient period of rest between the
close of one day's work and the beginning of the
next, which alone permits body and mind to bear
years of continuous work without wearing out.
Premature old age is induced by overwork as ef
fectively as by dissipation; and old age in the w a g e
earning class means dependence, if not pauperism.
To assure a regular period of fifteen hours between
one day's work and the next for young w o m e n and
girls engaged in manufacturing and commerce
would undoubtedly do as m u c h to prolong their
years of self-support and diminish their period of
enforced dependence upon others as any measure
avowedly in the interest of hygiene and public well
being which could be enacted.
The philanthropic world is all astir on behalf of
the crusade against tuberculosis. Funds are readily
forthcoming for the foundation of sanatoria for the
use of working people, especially for young girls
and children. But tuberculosis is promoted by over
work as m u c h as by any other single cause. To
shorten the hours of daily labor, to afford daily
leisure for rest and recreation to young employees
during the years of life in which the susceptibility
to infection is greatest, years which coincide with
the term of employment of girls and w o m e n in
largest numbers, is quite as clearly a life saving
service as to build and maintain sanatoria. M o r e
over,the loss of time involved in recovery from
IIO

1

T H E

RIGHT

TO

LEISURE

tuberculosis is accompanied by expenses to the pa
tient, her family and the community which might
wellall be spared, were theyoung worker permitted
to escape this enforced idleness by enjoying in due
time a rational measure of daily rest and freedom.
Vice flourishes wherever self-support for honest
working-women is unusually difficult, and the
sweating-system is breaking d o w n to an alarming
degree, in N e w York City, that domestic righteous
ness which, for thousands of years, has distin
guished the people of Jewish faith. To establish
effective restrictions upon the hours of labor in
the needle-trades would equalize the burden borne
by these workers, spreading work over more days
and weeks, granting more daily leisure, and thus
making righteous living easier for tens of thousands
of young working people whose traditions are en
tirely honorable, but w h o are n o w subjected to a
pressure to which all too m a n y victims succumb.
It m a y be fairly claimed, then, that the establish
ment of regular daily leisure contributes to the
health, intelligence, morality, lengthened trade life,
freer choice of h o m e surroundings, thrift, self-help
and family life of working people. Granted that
not all workers make equally valuable use of free
time, just as members of the leisureclass vary in the
uses t o w h i c h they apply their leisure, it remains
true that, without free time, these benefits are im
possible. To be deprived of leisure is to be de
prived of thosethings which make life worth living.
Leisure seems to have come to different groups
of people in different ways;—to some automatically
III

S O M E

ETHICAL

GAINS

without exertion on their part; to others as the
result of long, painful struggle; to many not at all.
T h e portion of society to which leisure has not
c o m e consists, on the one hand, of the great body of
children and young girls in the textile and other in
dustries in states in which no laws yet define the
limit of their working day and working w e e k ; and,
on the other hand, of the mass of unskilled w o r k
ingwomen as unorganized and defenseless as the
children themselves.
T h e Unsought Leisure of Prosperous W o m e n .
- T h e people to w h o m leisure has come unsought,
a free gift of the n e w industrial order, are the
w o m e n in prosperous circumstances. Never before
in the history of civilization have w o m e n enjoyed
leisure comparable to that which n o w falls to the
lot of those in comfortable circumstances in A m e r
ica. The modern conveniences of the city or s u b
urban h o m e reduce to a m i n i m u m the unavoidable
exertion (except such as is demanded by aseptic
cleanliness enforced by the fear of disease germs in
dust and all that harbors dust!). For the prosper
ous housekeeper flowing water, gaslight and elec
tricity, modern facilities for heating and cooking,
foods prepared outside the home, garments bought,
whether ready-made or m a d e to order,—all these
contrivances, together with the exodus of the h o m e
industries, yield to w o m e n a leisure which they ac
cept as an unqualified right. The wives of tens of
thousands of business m e n and well-paid employees
enjoy unquestioningly, and as a matter of course, a
degree of leisure such as formed the exclusive
I12

T H E

RIGHT

TO

LEISURE

privilege of a small aristocracy in earlier centuries.
The beneficent social and philanthropic activities of
public spirited w o m e n and the baneful epidemic of
gambling at cards which has run riot for several
years and shows no tendency to diminish, are twin
offspring of this unearned leisure.
As employers of labor in the home, w o m e n have
been called upon to share with their domestic em
ployees some of the new -found leisure, and they
have not always discerned the importance of recog
nized and regulated free time at the disposal of the
employee as an element in determining the quality
of the "help" available in the labor market which
they frequent. Sunday rest, the Saturday half
holiday, early closing, and the prohibition or re
striction of evening work, have contributed to make
work in manufacture or commerce more attractive
to large classes of young girls in highly developed
industrial communities, than household labor with
its indeterminate hours. A n d where w o m e n as em
ployers have discerned the intimate relation between
the industrial life about them and the domestic life
under their o w n roof, they have naturally viewed
with a critical eye that tendency towards work in
other forms of industry in preference to housework,
which presses with ever increasing effectiveness
upon their personal arrangements.
W o m e n in their homes, in the full enjoyment of
leisure as a h u m a n right which no one disputes, see
fromafar and often unsympathetically the effort of
the wage-earners to secure for themselves similar
leisure, either by means of statutory provisions or
8
113

S O M E

ETHICAL

by trade-agreements.

GAINS

It requires cultivation of the

imagination to enable w o m e n thus fortuitously en
dowed with leisure to perceive an organic relation
between their o w n possession of it and the p r o
ductive activity of other w o m e n , and of children, in
the manufacture and distribution of m a n y things
which were formerly prepared within the h o m e ; to
make the connection between this free gift of the
n e w industrial order to themselves and the struggle
of the garment-workers, for instance, to secure by
organization and trade agreements, and by statutes,
the assurancethat the needle-workers need not work
more than eight hours in one day. The conductor
o f a railway train has regular" runs" upon whichhe
can count inadvance, and in accordancewith which
he arranges his seasons for sleeping, eating and
recreation. His wife enjoys the leisure which has
come to her unsought. He can understand the
effort of the garment-workers to maintain their or
ganization in its most militant form , because he as
sures the permanence of his o w n leisure by helping
to sustain his o w n organization with its trade agree
ments. B u t his wife cannot so readily understand
or sympathize with the motive of the garment
workers, because the leisure which distinguishes her
from her great-grandmother has come to her
through no effort of her o w n , butautomatically by
the introduction of mechanical improvements and
by theexodus of the industries from the home. It
m a y beurged that the leisure of prosperous w o m e n
is only apparent; that each improvement has en
tailed fresh duties of administration; that the stand
114

T H E

RIGHT

TO

LEISURE

ard of living has been so raised that their time is as
fully occupied as it ever was. F r o m the economic
point of view, however, the n e w occupations are
distinctly of the leisure type,-not o f a n y recognized
productive or distributive type.
To the credit of w o m e n of the prosperous class it
m u s t b e said that, within recent years, m a n y of them
have been making active and intelligent efforts to
establish legal claims to leisure for children and for
w o m e n industrially employed. The Saturday half
holiday, the s u m m e r vacation for clerks, the child
labor laws, and the prohibition of work at night for
w o m e n and children have had no more faithful ad
vocates a m o n g the wage-earners themselves than
a m o n g members of the Consumers' League, the
Church Association for Improving the Condition of
Labor and the women's clubs. Just in proportion
as w o m e n w h o enjoy leisure in their homes come to
see h o w far they owe thatenjoyment to the work of
other people, and to recognize the just claims of
those others to a share of leisure, m a y we reason
ably expect that the number and effectiveness of
such organizations will multiply. A n d it will ap
pear in the course of the present discussion that the
need for suchorganizations is anabiding need, aside
from the maintenance of the organizations of the
workersthemselves.
The share of credit due to these participants in
the effort to establish the right to leisure is the
greater because, in their capacity as housekeepers,
they come into contact with precisely that portion of
the working-class whose method
115

of establishing

x

S O M E

ETHICAL

GAINS

leisure for themselves appears to be most trying.
Gas-fitters, plumbers, carpenters, upholsterers,
paper-hangers, plasterers, painters, and glaziers
have not, on the whole, distinguished themselves, in
recent years, by that sweet reasonableness which
might have ingratiated them and their cause with
families whose homes have needed alterations and
repairs.

A n d the ability of thousands of house

mothers to rise above their personal grievances and
advocate a reform the attendant disadvantages of
which they have been made to feel in no gentle
manner, speaks well for the intelligence and the
principle of modern w o m e n .
Enforced Idleness is not Leisure.-In s o m e oc
cupations the nature of the work to be done involves
interruptions which force the workers to await the
resumption of activity; and these interruptions m a y
be welcome and beneficent, or they m a y be veritable
paths to destruction, their effect depending upon the
circumstances under which the working people are
able to meet them.
Thus the sailor spends weeks on land in enforced
idleness through no choice of his o w n but because
the vessel must load and unload, or must await the
regular day of sailing. Jack ashore affords the
classic example of the workingman harmed by un
organized and, therefore, unprofitable, if not ac
tively injurious, idle time as contrasted with regular,
organized, beneficent leisure. No stronger argu
ment need be found for the statutory establishment
of daily leisure for employees in all trades in which
that is possible, than the evils entailed upon sailors
116

T H E

RIGHT

TO

LEISURE

by the impossibility of distributing their idle time in
ways wholesome for themselves.
The long leisure of the northern farmer's winter,
recurring and regularly prepared for, has, without
doubt, contributed m u c h to the general high level of
intelligence and character a m o n g the native popula
tion of N e w England and the Northwest. T h e
picture of the boy Lincoln studying by the light of
the fire on the hearth gripped the imagination of
the American people because itappealed to the per
sonal experience of a multitude to w h o m the leisure
ofthe hearthstone was the earliest recollection. T h e
sharpest possible line of demarcation divides citi
zens whose experience includes the long country
winter from those city-bred, to w h o m the seasons
mean little more than the change from the exhaus
tion of s u m m e r heat to a more bracing atmosphere,
the round of their work having no relation to the
visible order of nature, and their leisure being as
sured them by circumstances unrelated to the time
of year. The farmer's family, accustomed to work
without ceasing at the harvest, as they rest at length
during the winter (both experiences being dictated
by the nature of the work to be done and the season
of the year, over which they have no control), c a n
not readily understand w h y thousands of tailors
should strike for months together, at the height of
the season, in the hope of working an hour a day
less throughout the following year.
Yet it is by no means accidental that, in the gar
ment-trades, strikes habitually have to do with the
maintenance of a trade organization, or with the
117

S O M E

ETHICAL

GAINS

hours of labor, because the garment-workers, more
than any other wage-earners, suffer the disadvan
tages both of overworkand of unemployment. The
garment-workers endure the " dull season" because
garments vary with the season and orders are
“ slack” or “rush ” without reference to the prefer
ence of the needle-workers. O n e part of their year
brings with it overwork such as occurs in no other
occupation, while another entails idleness on the
hardest terms k n o w n to modern industry. T h e
tailors' long struggle to distribute their work over
the longest possible series of weeks, by shortening
each working day to ten, nine, or eight hours is, in
essence, a struggle to attain reasonable leisure in
place of deadly haste followed by weeks or months
of corroding idleness.
While the winter leisure of the farmer is made
safe by the assured supplies of food, fuel and shelter
prepared in advance for the season's need, the an
nually recurring dull season in the garment-trades
is a period of anxiety and suffering, w h e n the
grocer's bill grows as large as his good will v e n
tures to permit, and eviction from their tenement
dwelling is a calamity to be expected and endured
by the garment-workers' families as the fortune of
war. In this there is no element of wholesome
leisure. The words "dull season," originally re
ferring to the state of the trade from the employers'
point of view, describe but faintly the black despair
which that season, under the sweating-system , in
volves for the workers in the garment-trades.
In the needle-trades half the enployees are w o m
118

T H E

RIGHT

TO

LEISURE

en, young, non-voting, temporary members of the
body of wage-earners pending marriage or disabil
ity. No part of the industrial a r m y grows so r a p
idly as the contingent of young girls between four
teen and twenty years of age; and no part is so void
ofinitiative for its o w n welfare, so unfit to assert or
maintain any right. Beginning work at the age of
folly, they readily accept as the regular working
day ten hours in twenty-four, increasing this to any
length allowed by the statutes, and working fre
quently without extra pay merely under the threat
of dismissal in case of their refusal. Of their o w n
initiative, these young needle-workers would never
secure the half-holiday, a s u m m e r vacation with or
without pay, or even the enforcement of the legal
They
restriction upon their regular working time.
are a perpetual hindrance to the efforts of the m e n
w h o work with them to secure stable employment
and reasonable leisure. Overwork seems to come
to these girls as blindly as leisure has befallen the
w o m e n in the well-to-do households.
In the needle-trades, the effectual establishment
of the legal working day and working week serves,
whereverthis has beenaccomplished, asfor instance,
in Massachusetts, to mitigate both the enforced
overwork and the enforced idleness which charac
terizes those trades when left to the free play of
industrial forces. W h e r e the working time is
effectively limited, preparations are made systemat
ically, in advance of the height of the season, for
meeting the coming pressure. Space and m a c h i n
ery are provided, and extra hands are trained, by
119

S O M E

ETHICAL

GAINS

preparing stockwork, for the finer work to be de
manded of them later. Thus some of the u n e m
ployed are temporarily absorbed into the regular
industrial army, and the contrast between the ex
tremes of the seasons is mitigated.
It is evident upon close acquaintance that in the
garment-trades the injurious differences of season
are only in part due to the conditions inherent in the
trades themselves. They are not like the midwinter
cold and midsummer harvest heat in the experience
of the farmer. They are far more subject to control
than the managers of the industry have ever been
willing to admit. Moreover, the general purchas
ing public has vastly more power of initiative, c o n
trol and restraint than it has ever been aware of, by
means of the placing of "rush" orders, on the one
hand, and of voluntarily regulating the times of its
buying on the other. This has already been indi
cated in the matter of Christmas shopping and its
bearing upon the cruel overwork of children at that
season.

The garment workers are not so obviously
present as the children in the stores, and itrequires,
therefore, more sympathetic imagination to enable
the shopping public to make the connection between
the excessive exertion which alternates with ruinous
idleness of the machine workers, and its o w n h e e d
less crowding of the shopping season into a few
weeks in the spring and fall.
Increased Speed Calls for Leisure. In the ca
pacity of inspector for the National Consumers'
League it has been the fortune of the writer to visit
and inspect a large number of factories in the
120

T H E

RIGHT

TO

LEISURE

stitched muslin underwear trade during the past five
years. In the course of that time there has oc
curred a developmentofmachinery so significant in
its consequences as to seem worth describing s o m e
what at length as a concrete illustration of the
process which is discussed more abstractly through
out the present chapter. In all the best factories
within this trade the speed of the sewing-machines
has been increased so that they set, in 1905, twice
as m a n y stitches in a minute as in 1899.

Machines
which formerly carried one needle n o w carry from
two to ten, sewing parallel seams (for bones in
waists, or for tucks, or merely for decorative stitch
ing). Thus a girl using one of these machines is
n o w responsible for twice as m a n y stitches at the
least and for twenty times as m a n y stitches at most,
as in 1899. S o m e girls are not capable of the sus
tained speed involved in this improvement, and are
no longer eligible for this occupation. Those w h o
continue in the trade are required to feed twice as
m a n y garments to the machine as were required five
years ago. The strain upon their eyes is, however,
far more than twice what it was before the im
provement. In the case of machines carrying m u l
tiple needles this is obvious; but it is true of the
single-needle machines also. It is the duty of the
operator to watch the needle so intentlyas to discern
the irregularity caused by a broken threadorbroken
needle, and to stop the machinery by pressing an
electric button before any threads are cut by the
broken needle, or any stitches of the seam are
omitted because of the broken thread. N o w , when
121

S O M E

ETHICAL

GAINS

the needle set twenty-two hundred stitches a minute,
as was the case in 1899, the writer, whose eyes are
unusually keen, could see the needle when the ma
chine was in motion. At the present speed, the
writer, whose eyes have remained unimpaired, is
wholly unable to see the needle, discerning merely
the steady gleam of light where itis in motion.

To

meet this difficulty, which occurs regularly in the
case of the operatives, it is n o w the custom to sus
pend an electric light directly above the machine, so
that a ray strikes the needle. T h e strain upon the
eyes of the operators is almost intolerable, and a
further winnowing-out of the w o m e n eligible for
this occupation follows the introduction of the pres
ent method of lighting.

t
o

It is reasonable to inquire what benefit accrues to
a machine operator w h o completes twice as m u c h
work in 1905 as in 1899, and the writer has made
this inquiry whenever opportunity has offered. On
the whole, itappears that there has been no propor
tionate gain for the operator. If all the gain that is
made by the improvement in the machines went to
the operators in the form of increased wages, it is
doubtful whether it would be compensation for the
additional strain upon their eyes and nerves. But
no such share of gain falls to them.

Their wages

are calculated upon the same basis as in 1899,
namely, that employees of the required speed and
skill can be obtained in the required number for six
dollars a week, irrespective of their output of work.
In conversation with employers the writer is as
sured, from time to time, that piecework prices are
122

T H E

RIGHT

TO

LEISURE

regularly calculated to afford a total of six dollars a
week for skilled workers, the stock phrase being:
“ Ifa girl cannot earn six dollars a week at machine
work after she has been doing it from six weeks to
three months, she is not adapted to the work, and it
is better to put another girl at hermachine.” On
the part of the girls the statement is very generally
made that, in places in which the supply of help is
abundant, the proportion of girls receiving less
1
than six dollars is kept large by constantly changing
hands, dismissing those whose wages are growing
higher with increasing skill, and taking on begin
ners. Combined with this constant changing goes
a frequent rearrangement of piecework prices, such
that only a small minority of the girls in a factory
ever rise above the dead level of six dollars a week,
the same s u m that was paid in 1899 for half the
work n o w done.
O n e skilled worker w h o left a factory for four
years and returned to the same machine which she
had left, found it speeded up to double its former
capacity. Her work was doubled, but her wages in
creased only from six dollars a week to seven,
though she was one of the most skilled persons in
her trade, an experienced, strong, willing operator.
This girl was asked w h o , in her opinion, profited by
the doubling of the output of her machine. In re
ply she said: “ I get a dollar a week more. The
company makes something out of the improvement,
or they would not have made it. But there have
been so m a n y cuts in prices that the company don't
get as m u c h as you'd think for doubling the speed
123

S O M E
of the machines.

ETHICAL

GAINS

I guess the people that buy the

garments must get most of the difference; they can
get so m a n y more garments for the same money."
There is no doubt that this sewing girl was en
tirely correct in her estimate of the effects of
doubling her work. The purchaser, in the long
run, profits by every improvement in machinery and
in the speed of the workers. But the girls w h o
stitch underwear are not only working the same
number of hours as in 1899; they are wearing t h e m
selves out at a rate of speed such that the term of
their whole working-life must inevitably be greatly
shortened. The nervous energy required from day
to day is more than can be supplied by the free time
between one day's work and the next. A phrase in
which they commonly describe the experience of
girls w h o have dropped out of the trade tells the
whole story:

" She got too

slow,

she couldn't

keep up with her machine any longer.”
There is no immediate prospect of any material
improvement in the money wages paid to operators
in this trade; for the employers have at c o m m a n d ,
not only tenement-house workers and institutions
re maintained out of the public funds and, therefore,
willing to do sewing for merely nominal compensa
tion; they have also the pupils of the m a n y charit
able and reformatory schools which persist in pre
paring every available girl for this most undesirable
of all skilled occupations.

Since the wages of the

sewing machine operators are determined, not pri
marily by the amount of their output, but by m a n y
other considerations (the pressure of the tenement
124

T H E

RIGHT

TO

LEISURE

house workers, the institution workers, and the re
cruits in the trade sent out from the institutions,
etc.), there seems to be no need to fear that they
would lose in wages if their hours of labor were
reduced by the enactment of a statute restricting
their working time to eight hours in one day and
forty-eight in one week. In the interest of their
health this change appears to be indispensably
necessary. It has been, however, impossible for
them to make any permanent improvement in the
conditions of their employment by unaided effort of
their own. There is no inclination visible on the
part ofemployers to reduce the hours of work. On
the contrary, the manufacture of stitched white
muslin underwear has become as completely a s e a
son trade as the preparation of Christmas tree dec
orations or Easter bonnets. Meanwhile, the n u m
ber of years during which a girl can continue to
earn a living at a sewing machine diminishes with
every improvement in her machine.
Methods of Establishing the Right to Leisure.
- B y the education of public opinion something has
been accomplished towards establishing leisure in
certain occupations. Thus an appeal has of late
been made, with promise of increasing success, to
the more kind-hearted and conscientious a m o n g the
stockholders of Southern cotton -mills to vote their
stock in ways calculated to obtain more humane
hours oflabor for the w o m e n and childrenemployed
in those mills. The hours of labor of the clerks and
cash children in the stores of m a n y cities have been
improved in consequence of the efforts of the C o n
125

S O M E

ETHICAL

GAINS

sumers' Leagues in some places, and of the Retail
Clerks' Protective Associations in others, to induce
the shopping public to exercise consideration of the
employees in arranging the hours of shopping.
The cigar-trade has long enjoyed the benefits of
the short working day by reason of the relatively
successful effort of the cigarmakers to apply in
practical form the principle which all trade unionists
acknowledge, and upon which thousands of them
conscientiously act. Millions of dollars have been
spent in advertising their label; cigars bearing it are
made only in shops in which the working day is
limited to eight hours; and working m e n of all
trades have taken the trouble to give the preference
in buying the cigars thus recommended. Here,
therefore, the establishment of leisure for the w o r k
ers has been accomplished by the effort of the w o r k
ers themselves. The limitations inherent in this
method appear, however, w h e n certain large em
ployers, selling cigars to customers not interested
in the subject, employ young girls w h o are not part
of any organization, and can be induced to work as
long as the law allows. It is an interesting and sig
nificant fact that the organizations mentioned as
using this method are a m o n g the most persistent
advocates of legislation restricting the hours of
labor, acting on the principle that not one but all
methods of protecting the workers in their right to
leisure must be followed, and taught by experience
h o w far more effective is their effort when directed
towards the enforcement of statutes than w h e n c o n
fined to persuasion alone.
126

C H A P T E R IV

JUDICIAL I N T E R P R E T A T I O N
TO L E I S U R E

OF

THE

RIGHT

T h e right to leisure has long been striven for by
means of trade agreements between employers and
employees, and of statutes, state and federal. The
statutes are m a n y and diverse, but those with which
the present discussion is concerned are of three
kinds:
Statutes stipulating the hours of work of public
servants, as letter carriers and printers in the g o v
ernment printing office;
Statutes restricting the hours of labor of w o m e n
and children;
Statutes which are n o w for the first time upheld
by the courts, restricting, in certain occupations, in
the interest of the public health, the hours of labor
of adult male employees working for corporations
or individual employers.
Until it has been sustained by the Supreme Court
ofthe United States, a statute is merely a trial draft,
the enactment of which is but the first step in its
development into valid law. In discussing the gains
which have been made in the direction of establish
ing the right to leisure, it is, therefore, necessary to
consider the leading cases which determine the
127

?

S O M E
line of

progress.

ETHICAL
Two

GAINS

cases decided

by

state

courts of last resort are still effective in preventing
the enjoyment of the right to leisure by wage-earn
ers in those states, although the Supreme Court of
the United States has, in regard to the subjectmat
ter of each decision, subsequently pronounced in
favor of the constitutionality of the statutory right;
and itis, therefore, reasonable tobelieve that, in the
course of time, the state courts will reverse their
present positions. These are the cases of Ritchie
vs. the People (Supreme Court of Illinois, M a r c h
5, 1895), and the
R o a d Construction
of Appeals of N e w
T h e Right to

People vs. the Orange County
C o m p a n y (April 25, 1903, Court
York ).
Leisure

Accorded

to Public

Servants.—The government of the United States,
in the year 1892, recognized the right to leisure by
limiting to eight hours in one day the working time
of laborers in its employment.
Since that time it has paid extra for overtime
work. The same right is recognized for m a n y
thousand employees directly engaged in the service
of states and municipalities. In all these cases the
hours of labor are restricted by statute, state or
federal, enacted through the exertions of the em
ployees themselves or of m e n engaged in the same
or kindred work.
1These are Holden vs. Hardy (U. S. Supreme Court, Feb.
28, 1898) ; Atkins vs. the State (U. S. Supreme Court, Oct.
Term, 1903); Lochner vs. New York (U. S. SupremeCourt,
April 19, 1905); and that older decision which sustained the
federal act of 1892 limiting to eighthours the workingday of
personsemployed under contract directly by the Government
of the United States.
128

JUDICIAL

I N T E R P R E T A T I O N

No claim has been made that it would necessarily
injure the health of the adult employees engaged in
these occupations to work more than eight hours in
a day. It is,however, their preference to work no
longer than that. They are politically powerful
enough to establish their preference by procuring
legislation; and in the case of the printers, they have
established the right before the Supreme Court of
the United States. The work of the nation, the
states and the municipalities appears to be done, on
the whole, satisfactorily to the people and to the
employees. Such scandals as have arisen in the
public service seem to have had no relation to the
daily work of the rank and file.
It is worthy of note that these employees are
engaged at work in which they are subject to no
pressure of competition from w o m e n and children.
The moderate hours of work doubtless explain, in
part at least, the eagerness of m e n to secure public
employment, even where defective civil service laws
make promotion excessively difficult and give the
public servant scant hope of any considerable in
crease in his remuneration.
Convinced of the advantage derived by m e n in
the direct employ of the various governments, fed
eral, state and municipal, from the short working
day prescribed by law, m a n y trade organizations
have long and persistently striven to secure from
Congress and from state legislatures,laws requiring
that contractors employed by the government shall
be bound by the terms of their contracts to limit the
day's work to eight hours. The workingmen insist
129
9

S O M E

ETHICAL

GAINS

that work for a government contractor is indirectly
work for the government, and should be performed
upon the same terms, assuring to the worker the
same advantages. As government contracts ramify
into ever-increasing series of industries, such stat
utes would establish the usage of the shorter w o r k
ing day to an extent and in directions little foreseen
by those w h o are not personally interested in the
subject.
The unimagined ramifications of the work of the
United States Government done under contract m a y
be indicated by the fact that the writer has seen
letter pouches, for the use of the United States rail
w a y mail service, sewed by small boys detained in a
reformatory institution for young children carried
on by a religious sect, at the cost of the treasury of
the city of N e w York. T h e g o v e r n m e n t contract
had been awarded to a manufacturer w h o had
farmed out a part of it under the sweating-system,
to be executed by child labor, under conditions
deemed wholly inadmissible by enlightened modern
opinion. This ramification of government contract
work into the sewing trades, the sweating-system,
and the perversion of child-saving philanthropy is
cited merely to intimate h o w far reaching,,in its
potential beneficent effects, is the effort of the w o r k
ingmen to secure statutory provision that, in all
contracts for government work, the right to leisure
shall be recognized by a stipulation binding the c o n
tractor to the working day of eight hours.
The effort thus to secure statutory recognition of
their right to daily leisure when employed indirectly
130

JUDICIAL

I N T E R P R E T A T I O N

by the government through contractors, is made as
vigorously by m e n in industries in which trade
agreements are available as in other trades.

From

their long, persistent effort for this legislation, it ap
pears that they recognize the desirability of statu
tory recognition of the right, as contrasted with the
conquest of leisure, in each individual case, by
means of trade agreements.
Viewed as an infringement of his freedom of
contract, the workingman's eagerness for statutory
restriction upon his hours of labor m a y seem to be
self-stultification. But viewed as an effort to es
tablish a legal claim to a settled modicum of daily
leisure, it becomes at least intelligible. There m a y
well have been a time when a usury law seemed to
inflict hardship upon a borrower eager to pay any
price for an urgently needed loan. Yet it was the
debtor class w h o desired and ultimately obtained the
enactment of usury laws. They wished to be rid of
their freedom to contract for lifelong indebtedness,
as the wage-earner to-day wishes to be rid of his
present freedom tobargain a w a y what he regards
as an undue share of his twenty-four hours, and ex
perience has demonstrated the correctness of the
instinct which guided the effort of the debtors.
Every

year the body

of workingmen

voters

pledged to secure from the various governments
legislation prescribing the so-called " eight hour
clause” in all contracts, grows larger and more in
sistent; and every year the industrial territory in
volved in such contracts enlarges its boundaries and
becomes

more

important. The
131

recent irrigation

S O M E
undertakings

ETHICAL

of the

GAINS

United States in the

arid

regions sufficiently illustrate the rapidly increasing
scope of these contracts.
Although Congress is far behind the governments
of England and Canada in guaranteeing to its indi
rect employees, working for it through contractors,
the same leisure which it has long granted to its
direct employees, the states and cities are going
rapidly forward and the Supreme Court of the
United States, in October, 1903, in the case of
Atkins vs. the People, sustained the right of a state
to provide by statute for the working day of eight
hours for employees of the state itself, and of c o u n
ties and municipalities within its borders, whether
the work be done directly, or indirectly through c o n
tractors.
W h e n a majority of the states, acting under this
decision, have adopted statutes providing for the
working day of eight hours for employees working
for the public indirectly through contractors, it is
reasonable to suppose that Congress will enact the
bill which for m a n y years has been presented to it
at every session, providing for similar protection
for workingmen in the employ of contractors w o r k
ing for the federal government.
T h e R i g h t toLeisure o f W a g e - E a r n i n g W o m e n
and Children.- While striving to establish for
themselves the right to daily leisure by trade agree
ments a n d b y statutes, the wage-earning voters have
never relaxed their efforts to establish the same
right for w o m e n and children in the employ of pri
vate individuals and corporations. A n d in this
132

JUDICIAL

I N T E R P R E T A T I O N

effort they have found it easier to use legislative
methods, because the courts havebeen, onthe whole,
more inclined to permit the exercise of the police
power of the legislatures than in the case of adult
men.
Statutes restricting the hours of labor of w o m e n
and children, while enacted in the interest of health
and morality, have often been urged by persons ani
mated by two othermotives as well. In m a n y cases,
m e n w h o saw their o w n occupations threatened by
unwelcome competitors, demanded restrictions upon
the hours of work of those competitors for the pur
pose of rendering w o m e n
ployees.

less desirable as em

In other cases, m e n w h o wished reduced

hours of work for themselves, which the courts de
nied them , obtained the desired statutory reduction
by the indirect method of restrictions upon the
hours of labor of the w o m e n and children whose
work interlocked with their o w n . But whatever
the motive of the enactment, the real gain has al
ways been leisure for all concerned; and the a d v a n
tages to employers derivable from the work of
w o m e n and children have regularly outweighed any
inconvenience arising from the shortened working
week.
Before 1889 the effort for the enactment of stat
utes regulating the hours of labor of w o m e n was
confined to the trade unions, w h o had struggles of
their o w n , to protect their o w n interests, and w h o
can scarcely be blamed if they fought the battles
for leisure for w o m e n and children first and most
effectively in fields of industry where they t h e m
133

us

S O M E

ETHICAL

GAINS

selves reaped rewards from their occasional suc
cesses, i. e., in occupations in which the work of
w o m e n and children interlocked with their o w n .
The s u m total of progress made is deplorably
slight. While the hours of labor of children under
the age of sixteen years are restricted to eight in
one day and forty-eight in one week in Utah, Colo
rado, Montana, Illinois and Vermont; to nine in
one day and fifty-four in one week in N e w York
and Delaware and to ten in one day and fifty-five in
one week in N e w Jersey; yet for girls between the
ages of sixteen and twenty-four years whose n u m
bers are increasing more rapidly than any other
part of the working class, there are neither effective
trade agreements nor laws prescribing anything
more advanced than the working-day of ten hours
and the working-week of fifty-eight or sixty hours.
Moreover, the existing inadequate statutes tend to
laxity of enforcement and to exceptions so im
portant as to nullify the intent of the law in m a n y
cases.
Obviously most progress in establishing the right
to leisure has been made by m e n w h o are both
skilled workers and also voters (printers in the
government offices, etc.), and the least progress by
children ten years old in Georgia and Mississippi.
We commonly assume that, under the processes of
evolution, industrial conditions improve from
decade to decade. But in the matter of a whole
some distribution of free time, itis clear that gains
have been made, hitherto, according to the power of
the working people to assert their right.
134

H o w else

JUDICIAL

I N T E R P R E T A T I O N

can we account for the fact that children of ten
years of age still work eleven hours a day in the
cottonmills of Georgia? The reason for their over
work is obviously to be sought in their powerless
ness to organize fortheirown defense, in the w e a k
ness of the organizations of m e n in industries in
which w o m e n and children compete, as they do in
the textile trades; and in that apathy of public
opinion which permits stockholders living in states
in which relatively humane conditions have long
prevailed, to derive incomes from corporations in
states in which children and young girls are still
exploited without restriction.
Leisure never comes to young girls and children
employed in manufacture and commerce through
efforts of their o w n , or upon the initiative of their
employers, because under the demand for dividends
and the pressure of competition, the better employer
is constrained by the meaner or the industrially
weaker. On a large scale this is illustrated by the
alleged present inability of manufacturers in M a s
sachusetts to shorten the working day and the
working week in the textile trades, by reason of the
pressure of their Southern competitors. For the
younger workers, therefore, leisure is gained, with
no help from themselves, either because their work
interlocks with that of m e n working under trade
agreements; or because statutes have been enacted
fortheirbenefit and the organization of m e n in their
trade is powerful and intelligent enough to obtain
effective enforcement of the laws; or because there
is intervention on behalf of the young employees by
135

why

S O M E

ETHICAL

GAINS

philanthropic bodies, such as the Consumers'
League and the various child-labor committees and
working-women's societies, through which the p u b
lic at large intervene in the interest of health and
morality.
Taken altogether, the progress made on behalf of
w o m e n and children, so slight, and so diverse in the
different states, indicates h o w discouragingly far the
right to leisure still is from any universal recogni
tion, and h o w dependent upon militant action of the
workers themselves.
It was not until after 1870 that Massachusetts,
the Commonwealth which for thirty years stood in
advance of all the states of the Republic in safe
guarding the health, welfare and rights of w a g e
earning w o m e n and children, enacted a statute pro
hibiting the employment of w o m e n and children in
manufacture longer than ten hours in one day and
sixty hours in one week, and made provision for in
spectors to enforce the law. In 1876 this statute
was pronounced constitutional by the Supreme
Court of Massachusetts in the case of the People vs.
the Hamilton Manufacturing C o m p a n y (120 Mass.,
385, 1876), in which it was held that the legislature
had full power to restrict by statute the hours of
labor of adult w o m e n employed in factories, under
the ternis of Chapter II, Section iv, of the constitu
tion of Massachusetts: “ Full power and authority
are hereby given to the said General Court, from
time to time, to make, ordain and establish all m a n
ner of wholesome and reasonable laws, ordinances,
statutes, directions, and instructions, either with or
136

JUDICIAL

I N T E R P R E T A T I O N

without penalties; so as the same be not repugnant
to this constitution, as they shall judge to be for the
good and welfare of the Commonwealth, and for
the governing thereof."
M a n y states have since followed the example of
Massachusetts, but none has gone beyond it. In
deed, so far as is k n o w n to the writer, no other
state has followed the important improvements in
corporated in the Massachusetts statute since its
establishment in 1876 by the decision of the Su
preme Court. By subsequent amendments the hours
of labor of w o m e n engaged in manufacture were
reduced to fifty-eight in one week, and the same re
striction extended, in 1900, to the hours of labor of
w o m e n engaged in commerce, although an e x e m p
tion covering the month of December temporarily
weakened this extension compared with the protec
tion afforded to w o m e n engaged in manufacture.
In 1904, however, the exemption covering work in
December was repealed, and w o m e n n o w stand on
the same footing in regard to daily leisure, whether
they are employed in manufacture or in commerce.
N e w York waited until 1886before restricting by
statute the hours of labor of w o m e n and children;
and even then provided only for w o m e n under the
age of twenty-one years, waiting until 1899, after
the promulgation of the decision of the United
States Supreme Court in the case of Holden vs.
Hardy, February, 1898, before extending the re
striction to w o m e n of all ages engaged in m a n u
facture.
T h e imperfect and unequal recognition of the
137

S O M E

ETHICAL

GAINS

right to leisure is well illustrated by the present
statutory provision of N e w York. There children
under the age of sixteen years cannot legally be em
ployed longer than nine hours in one day and fifty
four hours in one week. For children engaged in
manufacture, the working day must end at nine
o'clock at night, but children engaged in commerce
m a y work until ten. W o m e n of all ages are n o m
inally prohibited from working longer in m a n u f a c
ture than ten hours in one day and sixty hours in
one week, but this prohibition is rendered virtually
nugatory by the words “except for the purpose of
making a shorter working day on the last day of the
week,” in consequence of which the factory inspect
ors find the utmost difficulty in proving any given
violation of the whole provision. W o m e n
em
ployed in commerce enjoy, however, not even this
defective statutory provision after reaching the age
of twenty-one years. A n d for girls between the
ages of sixteen and twenty-one years it is expressly
permitted that they m a y work, without limitation of
the length of the working day, from December 15
to January 1, i. e., during the fortnight in all the
year in which they are most in need of a definite
prohibition of all work after six o'clock at night.
Here are four divisions of the protected workers,
all having different provisions as to their degree of
statutory leisure: Children under sixteen years of
age inmanufacture, and children of the sume age in
c o m m e r c e ; w o m e n under the age of twenty-one
years in commerce, and w o m e n of all ages i n m a n u
facture. A n d each of thetwo latter classes is s u b
138

JUDICIAL

I N T E R P R E T A T I O N

ject to exceptions in the statute which very seriously
diminish its face value.
T h e Illinois Decision of 1895; (Ritchie vs. the
People.)—In 1893 the legislature of Illinois en
acted a statute restricting the work of w o m e n and
girls engaged in manufacture to eight hours in one
day and forty-eight hours in one week, and p r o
vided for the enforcement of the law by inspectors
whose duty it was to prosecute all violations of the
statute. But in M a y , 1895, this law was pronounced
unconstitutional by the Supreme Court of Illinois,
and since that date there has been no restriction
whatever upon the hours of labor of w o m e n in that
Because itis still in force in Illinois, depriv
ing thousands of w o m e n and young girls of all stat
utory protection in the enjoyment of their right to
daily leisure, this decision is still of importance, and
is, therefore, printed in the appendix.
At the time of the rendering of the Illinois deci
sion, the writer, as the responsible head of the state
department of factory inspection, charged with the
duty of enforcing the eight hours law, incorporated
in the next following annual report of the depart
ment some comments upon the decision, which have
remained buried in the obscurity of an official re
port. T i m e has, however, verified in so hope-in
spiring a manner some of the statements there made
that it seems worth while to reproduce them after
the lapse i ten years:
" In annulling this section, the ground taken by
the court, namely that regulation of the hours of
labor is in excess of the powers of the legislature is
139

S O M E

ETHICAL

GAINS

of curious interest in contrast with the established
policy of those states and nations in which this
power to regulate is no longer in question, where the
principle is accepted and acted upon that the care of
the health of the factory employee is a legitimate
subject of legislation.
“ In France, G e r m a n y and every other continental
country, including Russia, and in the more progres
sive states of this country, legislative regulation of
the hours of labor has been found an effectivemeas
ure for the protection of the health of w o m e n and
children employed in factories and workshops. In
England, the principle of the regulation of the hours
of work for w o m e n and children has been estab
lished for more than two generations and the re
generation of the working-class in that country,
from the degradation in which it was sunk in 1844,
is generally attributed to the factory acts, and es
pecially to this important feature of them.
“ In contrast with the beneficent policy which has
been followed during the past half-century in that
greatest manufacturing country of the world, the
Supreme Court of Illinois, in the year 1895, has
rendered its decision upon grounds which were ad
vanced and rejected in the English parliament in the
fifties.
“ The n e w feature introduced into the body of
American legal precedent by this decision is the as
sumption that it is not exclusively a matter of the
constitution of Illinois. T h e state constitution
could be altered, so that thereafter the hours of
labor could be regulated by legislative enactment, as
140

JUDICIAL

I N T E R P R E T A T I O N

in the older industrial communities. The court,
however, makes the fourteenth amendment to the
Constitution of the United States the basis of its
decision. If this position were correct, all effort
for legislative restriction of the working day would
be wasted, since there is no prospect of change in
the Constitution of the United States.
"Happily the weight of precedent is not on the
side of the Illinois court; the precedents are in the
other direction. In Massachusetts, for twenty
years past, the principle has been established by the
Suprenie Court that the hours of labor of w o m e n
and children m a y be regulated by statute. The
Massachusetts precedent has had such weight that
no case has been carried to the Court of Appeals in
N e w York. The constitutionality of its ten hours
law, though suits have been brought under it, has
never been disputed.
" It remained for the Supreme Court of Illinois to
discover that the amendment to the Constitution of
the United States passed for the purpose of guaran
teeing the negro from oppression, has become an in
superable obstacle to the protection of w o m e n and
children. Nor is it reasonable to suppose thatthis
unique interpretation of the fourteenth amendment
will be permanently maintained, even in Illinois.
"To the working people of the state, the action of
the Supreme Court is a calamity, for it must never
be forgotten, in discussing the legislative restriction
of the hours of labor, that this is not a question be
tween the day ofeight hours and the day of ten. In
practise the question is between an unlimited w o r k
141

'Oss
Shtete
level

S O M E

ETHICAL

GAINS

ing day and a day restricted by statute to a reason
able number of hours. The court in this decision
holds that any restriction of hours of labor of adults
is beyond the power of the legislature.
“ The immediate result of the decision has been
the reëstablishment of the unlimited working day
for thousands of w o m e n and children in the fac
tories and workshops of Illinois.
“ W h e n itis remembered that the annual increase
in the number of w o m e n and girls employed in fac
tories and workshops in this state is counted by
thousands; that there are 1,181 little girls in the
sweat-shops of Chicago; that inspectors of this
department have found at work during the present
year more than 30,000 w o m e n , of w h o m more than
7,000 were in sweat-shops, it is clear that the ques
tion of legislative restriction of the hours of their
labor is not finally settled when the state Supreme
Court has passed upon it in disregard of the body
ofAmerican judicial precedents, in opposition to the
experience of all civilized countries, and to the in
jury of the large and growing number of w o m e n
and children engaged in manufacture within this
state.
" The judicial mind has not kept pace with the
strides of industrial development, and this decision
shows that Illinois is, in law in 1895, what it was in
fact when the state constitution was adopted in 1870
- a n agricultural state. W h a t then can be done for
the weakest and most defenseless bread-winners in
the state ?
“ The outlook is far from hopeless.
142

Even under

JUDICIAL

I N T E R P R E T A T I O N

the decision as it stands, farther legislative protec
tion for minors is not impossible. As to adults, the
court has reversed decisions upon points of far less
urgency than this.
"It m a y be that the court is as advanced as that
portion of the community which is not yet thor
oughly aware that Illinois is the third great m a n u
facturing state of the Union. W h e n , however, the
observations made during a few more years shall
have convinced the medical profession, the

phi

lanthropists, and the educators, as experience has
already convinced the factory employees themselves,
that it is a matter of life and death to the young
people w h o form so large a proportion of their
numbers, to have a working day of reasonable
length guaranteed by law, it will be found possible
to rescue the fourteenth amendment to the Consti
tution of the United States from the perverted in
terpretation upon which this decision rests. We
m a y hope that Ritchie vs. the People will then be
added to the reversed decisions.”
Despite the suggestion ofthe court that thehours
oflabor ofminors could be restricted by statute, the
paralyzing effect of the whole decision was such
that for eight years it was impossible to obtain even
a restriction upon the work of little boys at night in
glass-works. It was not until 1903, ten years after
the passageofthefirst eight hours law, that a child
labor law was enacted prohibiting the employment
of children under the age of sixteen years after
seven o'clock at night, or longer than eight hours in
one day. Thus from 1895 to 1903 girls fourteen
143

S O M E

ETHICAL

GAINS

years of age could be legally employed throughout
the night, or for any number of consecutive hours
that might suit the convenience of their employers.
A n d at the present time, both boys andgirls over the
age of sixteen years have no statutory right to any
daily leisure in Illinois, but m a y be called upon to
work twenty-four hours at a stretch if an employer
should care to make such a demand.

Instances

have come to the knowledge of the writer in which
corporations having branches in N e w Y o r k and
Illinois obeyed the law of N e w York and employed
no w o m e n or girls after nine o'clock at night in
that state, while, under the Illinois decision, they re
quired young girls to work all night in the Illinois
factory. Indeed, young girls are regularly and
constantly required to work at night in Chicago.
During the years since that belated and anti
social decision, Illinois has been the scene of a large
number of strikes, in which the length of the w o r k
ing-day was either the only point or the principal
point at issue. H a d the workingday of w o m e n and
girls remained legally determined throughout the
period, according to the enlightened intention of the
legislature of 1893, itwould have been eliminatedas
a cause of discord in all those cases in which only
w o m e n and girls were involved and in all those
other cases in which the hours of labor of m e n are
determined by the length of the working day of the
w o m e n and girls whose work interlocks with their
o w n . The number and seriousness of the strikes
since 1895, in Illinois, would in all probability have
been thus materially diminished, together with the
144

JUDICIAL

I N T E R P R E T A T I O N

lawlessness incident to them, since an ever present
cause of discord would have been eliminated by the
statutory recognition of a right.
Since 1876 the hours of labor of w o m e n engaged
in manufacture have been determined by statute in
Massachusetts, and strikes turning upon this point
have been impossible. In Illinois, since 1895, the
hours of labor of w o m e n and girls have been un
limited, by reason of the decision of the Supreme
Court in the case of Ritchie vs. the People. Since
the Supreme Court of Illinois interfered with, and
rendered unavailing, the effort of
that state to eliminate a cause of
lishing a statutory right, it seems
tribute to the court the ultimate
the lawlessness o f m e n and w o m e n

the legislature of
discord by estab
reasonable to at
responsibility for
w h o have striven

to establish by extra-legal or illegal methods that
right to leisure which the courts of Massachusetts
and of the United States affirm , but the Supreme
Court of Illinois denies.
The justice w h o wrote the Illinois decision is
dead. A judicial election has been held and several
of his reactionary colleagues have been replaced by
m e n of more modern mind. But more important
than these changes of personnel is the prospective
effect of the decision of the Supreme Court of the
United States in the case of Holden vs. Hardy, as
will appear from the discussion of that case.
T h e Right to Leisure of W o r k i n g m e n .— The
most important judicial decision affecting the right
to leisure is that of the Supreme Court of the
United States in the case of Holden vs. Hardy, pro
IO
145

S O M E

ETHICAL

GAINS

mulgated February 28, 1898, and commonly k n o w n
as the Utah Eight Hours Case. This decision c o n
firms the hope that the right to leisure m a y be es
tablished and extended by constitutional methods,
legislatures and courts workingharmoniouslyto p r o
mote the health and welfare of wage-earning people.
By its reasonable and affirmative construction and
definition of the intent and scope of the fourteenth
amendment to the Constitution ofthe United States,
this decision opened the w a y for a peaceful, though
slow and laborious evolution of the beneficent p o w
ers of the individual states, and for reasonable and
wholesome hours of work and of daily leisure. The
fact that itimmediately secured to the employees in
certain industries in Utah the benefits of a statutory
confirmation of their right to daily leisure, is not the
vital point in this decision. Far more important to
the nation and the future is the fact that it tended
to rehabiliate the states in the performance of some
of their most weighty functions, and reaffirmed
principles which, formerly accepted as self-evident,
had in recent years been not only disputed but abro
gated by state supreme courts in a long series of
decisions.
In all great industrial countries it has long been
recognized that manufacture and commerce require
equitable conditions; that legislative requirements
of whatever kind, if imposed upon one, must be im
posed upon all alike; that discrimination must be
avoided, not alone because it is unjust, but because
it is fatal. Hence legislation regulating the condi
tions of einployment is usually embodied in m e a s
146

JUDICIAL

I N T E R P R E T A T I O N

ures of national scope, the execution alone being
left to the local authorities, while broad fundamental
provisions are uniform for one industry throughout
an empire, a kingdom or republic. In America
alone, the constitution leaves, in effect, to the states
the regulation of the relation of employees to their
work, and of the conditions of that work,-except
as employees w h o come under the interstate c o m
merceact receive the benefit of certain safeguards
prescribed by that act.
W h e n , therefore, state Supreme Courts take the
position held by the Illinois court (Ritchie vs. the
People), annulling the Illinois eight hours law, viz.:
that, in consequence of the fourteenth amendment
to the Constitution of the United States, the indi
vidual states are prohibited from interfering with
the hours of labor, commerce andmanufacture in
the states affected by such decisions are, pro tanto,
worse off than in other states and countries; for
they are left without either state or national pro
vision for that uniformity of relations which is one
of their most vital interests. This construction of
the fourteenth amendment, adopted and disastrously
applied, in recent years, by the Supreme Courts of
Illinois and several other states, has exercised a
doubly injurious influence. It has minimized the
power and efficiency of the states, and it has de
prived employees of a protection which they could
derive from no other source.
Incalculable importance attaches to this decision
of the Supreme Court of the United States, because
it reproves and, in the end, must effectively check
147

S O M E

ETHICAL

GAINS

that blighting tendency of the state Supreme Courts.
But for the unwholesome decisions of state courts
arbitrarily placing limitations upon the powers of

-

the states and reducing to lawlessness, for want of
any legislative body recognized by the state courts
as competent to deal with them, the relations of
employees to their work, m u c h of the decision under
discussion might seem to be mere truism. Under
existing conditions, however, it offers the curious
and instructive spectacle of the Supreme Court of
the United States assigning to the states duties and
powers which the Supreme Courts of those states
had previously declared not to be theirs.
In 1895 the Supreme Court of Illinois decided
that the state cannot restrict by legislation the hours
of labor of any adult. About the same time the
legislature of Colorado inquired of the Supreme
Court of Colorado whether a proposed statute l i m
iting to eight hours the working day of laborers and
mechanics would be constitutional; or whether it
could be rendered constitutional by an amendment
providing that it should apply only to mines and
factories. The Supreme Court of Colorado replied
that both proposals " would be unconstitutional, be
cause they violate the right of both parties to make
their o w n contracts—a right guaranteed by the
fourteenth amendment to the Constitution of the
United States.” In 1894 the Supreme Court of
Nebraska had decided that “ an act of the legislature
of that state providing that eight hours should con
stituite a legal day's work for all classes of me
chanics, servants, and laborers throughout the state,
148

JUDICIAL

I N T E R P R E T A T I O N

excepting those engaged in farming and domestic
labor, and making violation of its provisions a m i s
demeanor, was unconstitutional, and, therefore, void
both as special legislation and as attempting to pre
vent persons legally competent to enter into c o n
tracts, from makingtheir o w n contracts.”
Undeterred bythese threerecentanddiscouraging
decisions of western courts, the people of Utah fell
back upon the precedent of Massachusetts (People
Hamilton Manufacturing C o m p a n y , 1876),
affirming that the legislature of Massachusetts had
power to restrict by statute the hours of labor of
adult w o m e n employed in factories. The Illinois
court, in its decision annulling the Illinois eight
hours law, had taken occasionto refer to the M a s
sachusetts decision, stating that, “ it is not in line
with the current of authority," and explaining that
it could be arrived at only by reason of the “ large
discretion vested in the legislative branch of the
government” by the constitution of the state.
F r o m the days of the sweeping provision of the
constitution of Massachusetts which took effect Oc
tober, 1780, and has remained in force to the present
day, the tendency has been to reduce the powers of
the legislatures, both by restrictions inserted in the
state constitutions and by the interpretation placed
upon those constitutions by the state courts.
Strongest of all had been the use of the fourteenth
amendment by the state courts. This tendency to re
ducelegislativepowerinthestatestozero,degrading
the state government to a mere mechanism for lay
ing and collecting taxes for the maintenance of the
149

S O M E

ETHICAL

GAINS

judiciary, the militia and the state charities, reached
its culmination in the Illinois decision referred to.
H o w far the pendulum has s w u n g back towards the
position of Massachusetts in 1780 is shown by the
action of the people of Utah, by the decision of their
Supreme Court, and by the decision of the Supreme
Court of the United States sustaining that state
court.
The people of Utah, instructed by the Supreme
Court of Illinois in 1895, showed by their action in
1896 that they had learned the lesson. For, not
content with such sweeping generalities as those of
the Massachusetts constitution, they incorporated
into their n e w constitution of 1896 an article dealing
explicitly with the rights of working people, as fol
lows:
“ Section 1. The rights of labor shall have just
protection through laws calculated to promote the
industrial welfare of the state.
" Sec. 2. The legislature shall provide by law
for a board of labor, conciliation and arbitration,
which shall fairly represent the interests of both
capital and labor. The board shall perform duties
and receive compensation as prescribed by law.
" Sec. 3. The legislature shall prohibit:
“ (1) The employment of w o m e n , or of children
under the age of fourteen years, in underground
mines.
“ (2)

The contracting of convict labor.

“ (3) The labor of convicts outside prison
grounds, except on public works under the direct
control of the state.
150

JUDICIAL
“ (4)

I N T E R P R E T A T I O N

The political and commercial control of

employees.
" Sec. 4. The exchange of blacklists by railroad
companies, or other corporations, associations, or
persons is prohibited.
“ Sec. 5. The right of action to recover damages
for injuries resulting in death shall never be abro
gated, and the amount recoverable shall not be s u b
ject to any statutory limitation.
" Sec. 6.

Eight hours shall constitute a day's

work on all works or undertakings carried on or
aided by the state, county or municipal govern
ments; and the legislature shall pass laws to p r o
vide for the health and safety of employees in f a c
tories, smelters, and mines.
“Sec. 7. The legislature, by appropriate legisla
tion, shall provide for the enforcement of the p r o
visions of this article."
In accordance with the provisions of section 7 of
this article, the Utah legislature proceeded to enact
a statute, of which the essential features are as fol
lows:
“ Section 1. The period of employment of w o r k
ingmen in all underground mines or workings shall
be eight hours per day, except in cases of emergency
where life or property is in imminent danger.
“ Sec. 2. The period of employment of w o r k i n g
m e n in smelters and all other institutions for the
reduction or refining of ores or metals shall be eight
hours per day, except in cases of emergency where
lifeor property is in imminent danger.”
On June 26, 1896, one Holden was arrested under
151

S O M E

ETHICAL

GAINS

a warrant charging him with employing a m a n to
work in a mine ten hours in one day. T h e court,
having heard the evidence in the case, imposed a
fine of $50 and costs, and ordered the defendant to
be imprisoned in the county jail for a term of fifty
seven days, or until the fine and costs were paid.
The case was immediately appealed, under habeas
corpus proceedings, to the Supreme Court of Utah,
and the law was sustained. The case was then car
ried to the Supreme Court of the United States,
which handed d o w n its decision on February 28,
1898, Justices P e c k h a m and Brewer dissenting.
The statute was again sustained. The position of
the Supreme Court of the United States was defined
as to the constitutionality of statutory restrictions
upon the hours of labor of adults; and as to the
powers and duties of the states with regard to the
health and welfare of employees. The decisions of
the courts of Illinois, Nebraska and Colorado were
quoted with disapproval. But the great service
rendered by this decision was its destruction of the
bogy-man with which state supreme courts had for
years been terrifying themselves, and each other,
and timorous legislatures, under the name of the
fourteenth amendment to the Constitution of the
United States. Once for all, itis convincingly laid
d o w n by this decision that statutes restricting the
hours oflaborofemployees in occupations injurious
to the health will not be held unconstitutional by the
Supreme Court of the United States on the ground
that they are in conflict with the fourteenth a m e n d
ment to the Constitution of the United States.
152

JUDICIAL

I N T E R P R E T A T I O N

The decision is so coherent, so closely knit, that
injustice is done by quoting isolated parts of it by
w a y of illustrating the position taken by the court.
Yet certain portions of the decision are of such vital
import that they are here reproduced. Says the
court: “ The Constitution of the United States,
which is necessarily and to a large extent inflexible,
and exceedingly difficult of amendment, should not
be so construed as to deprive the states of the power
to so amend their laws as to make them conform to
the wishes of the citizens, as they m a y d e e m best for
the public welfare, without bringing them into c o n
Aict with the supreme law of the land.” A n d again
the court says: “ This court has not failed to rec
ognize the fact that the law is, to a certain extent, a
progressive science; that, in some of the states,
methods of procedure which, at the time the consti
tution was adopted, were deemed essential to the
protection and safety of the people, or to the liberty
ofthe citizen,havebeen found tobe nolonger neces
sary; that restrictions which had formerly been laid
upon the conduct of individuals, or of classes of in
dividuals, had proved detrimental to their interest,
while, upon the other hand, certain classes of per
sons (particularly those engaged indangerousorun
healthful employments) have been found to be in
need of additional protection.” “While this court
has held that thepolice powercannotbeput forward
as an excuse for oppressive and unjust legislation, it
m a y be lawfully resorted to for the purpose of pre
serving the public health, safety, or morals, or the
abatement ofpublic nuisances, a n d a large discretion
153

S O M E

ETHICAL

GAINS

'is necessarily vested in the legislature, to determine,
not only what the interests of the public require, but
what measures are necessary for the protection of
such interests.'” Finally, the court quotes with ap
proval the most advanced position taken by the
Supreme Court of Utah, as follows: “ Though
reasonable doubts m a y exist as to the power of the
legislature to pass a law, or as to whether the law is
calculated or adapted to promote the health, safety,
or comfort of the people, or to secure good order,
or promote the general welfare, we must resolve
them in favor of the right of that department of
governinent."
Having thus come to the rescue of the state legis
latures and their powers in general, the court deals
with their duties in regard to thehealth of em
ployees. It sets up the general proposition that,“ It
is as n u c h for the interest of the state that the
public health should be preserved as that life should
be made secure.” “ In (some] states lawshave been
enacted limiting the hours during which w o m e n and
children shall be employed in factories; and while
their constitutionality, at least as applied to w o m e n ,
has been doubted in some of the states, they have
been generally upheld.

Thus, in the case of the

Hamilton Manufacturing C o m p a n y (120 Mass.,
283), it was held that a statute prohibiting the em
ployment of all persons under the age of eighteen,
and of all w o m e n laboring in any manufacturing
establishment more than sixty hours per week, vio
lates no contract of the Commonwealth implied in
the granting of a charter to a manufacturing c o m
154

JUDICIAL

I N T E R P R E T A T I O N

pany, nor any right reserved under the constitution
to any individual citizen, and m a y be maintained as
a health or police regulation.”
It is refreshing to find the enlightened M a s s a
chusetts decision thus authoritatively brought back
into the "current of authority" from which it was,
as has been seen, thrust forth by the Illinois court
in Ritchie vs. the People. T h e Supreme Court of
the United States settles also the vital question:
" W h o shall decide which occupations are suffi
ciently injurious to justify the restriction of the
hours of daily labor ofpersons employed in them ?"
On no points have state courts been more arrogant,
the Illinois court taking perhaps the most extreme
position of all in the following passage of its de
cision: " It [the eight hours section of the state
factory law does not inhibit their w o m e n ' s ) em
ployment in factories or workshops. On the c o n
trary, it recognizes such places as proper for them
to work in by permitting their labor therein during
eight hours of each day. T h e question here is not
whether a particular employment is a proper one for
the use of female labor, but the question is whether,
in an employment which is conceded to be lawful
in itself, and suitable for w o m a n

to engage in,

sheshall be deprived of the right to determine for
herself h o w m a n y hours she can and m a y work
during each day. There is no reasonable g r o u n d
at least none which has been made manifest to us
in the arguments of counsel—for fixing upon eight
hours in one day as the limit within which w o m a n
can work without injury to her physique, and be
155

S O M E

ETHICAL

GAINS

yond which, if she work, injury will necessarily
follow.”
T h e court was naturally not in a position to in
vestigate the conditions of work in the factories and
workshops of Illinois. That is not its function.
But the legislature of 1893, which enacted the stat
ute then under consideration by the court, had been
in a position to investigate the conditions o f m a n u
facture throughout the state; it had appointed a
joint committee of the house and senate to investi
gate the factories and wrokshops in operation; this
committee had visited a great number of establish
ments, and had taken a large amount of testimony
from employers, employees, physicians, visiting
nurses, inspectors and other witnesses, and had de
cided that, in view of the intensity of work and the
speed required in virtually all occupations, eight
hours did constitute a limit of hours of labor beyond
which w o m e n could not work without injury. All
this no court can d o ; it has no apparatus for such
investigations; but this circumstance did not pre
vent the Illinois court from usurping the right
which the later decision of the Supreme Court of
the United States happily reassigns to the legisla
ture.
Touching the powers of the legislatures in the
matterof health and the hours of labor, the Supreme
Court of the United States says:

“ These employ

ments, when too long pursued, the legislature has
judged to be detrimental to the health of the em
ployees; and, so long as there are reasonable
grounds for believing that this is so, its decision
156

JUDICIAL

I N T E R P R E T A T I O N

upon this subject cannot be reviewed by the federal
courts.”
A n d elsewhere the Supreme Court of the United
States quotes with approval the words of the Utah
court: “It m a y be said that labor in such condi
tions must be performed.

Granting that, the period

of labor each day should be of reasonable length.
Twelve hours per day would be less injurious than
fourteen, ten than twelve, and eight than ten. The
legislature has named eight. Such a period was
deemed reasonable."
The Illinois court had said: " The police power
of the state can onlybe permittedto limit or abridge
such a fundamental right as the right to make c o n
tracts when the exercise of such power is necessary
to proniote the health, comfort, welfare, or safety
of society or the public; and it is questionable
whether it can be exercised to prevent injury to the
individual engaged in a particular calling."
In beneficent contrast with this sinister dictum, is
the following from the United States Supreme
Court: “ The legislature has also recognized the
fact, which the experience of legislators in m a n y
states has corroborated, that the proprietors of these
establishments and their operatives do not stand
upon an equality,and that their interests are, to a
certain extent, conflicting. The former naturally
desire to obtain as m u c h labor as possible from their
employees, while the latter are often induced by the
fear of discharge to conform to regulations which
their judgment, fairly exercised, would pronounce
to be detrimental to their health or strength. In
157

Ca
p

S O M E

ETHICAL

GAINS

other words, the proprietors lay d o w n the rules, and
the laborers are practically constrained to obey
them. In such cases self-interest is often an unsafe
guide, and the legislature m a y properly interpose
its authority.” “ The fact that both parties are of
full age and competent to contract, does not neces
sarily deprive the state of the power to interfere,
where the parties do not stand upon an equality, or
where the public health demands that one party to
the contract should be protected against himself.
The state still retains an interest in his welfare, h o w
ever reckless he m a y be. The whole is no greater
than the s u m of all the parts, and when the indi
vidual health, safety and welfare are sacrificed or
neglected, the state must suffer."
This decision was not, of course, retroactive. It
did not revive the Illinois statute restricting to eight
hours in one day the work of female employees en
gaged in manufacture, enacted in 1893 and p r o
nounced unconstitutional by the state Supreme
Court in 1895. It did, however, by citing with dis
approval virtually every proposition laid d o w n by
the Illinois court in that decision, give satisfactory
assurance that the next eight hours law enacted in
Illinois, if restricted in its terms to occupations
dangerous to the health of the employees, must
stand as good law, and cannot be pronounced in
conflict with the Constitution of the United States.
The decision of theSupreme Court of the United
States in the case of Holden vs. Hardy renders it
unnecessary that, in future, statutes restricting the
hours of labor should be confined in their applica
158

JUDICIAL

I N T E R P R E T A T I O N

tion to w o m e n and minors, if they have to do with
occupations injurious to the h u m a n organism . The
miners of Illinois and Pennsylvania might well
strive for statutory confirmation of the eight hours
day which they n o w enjoy only under terminable
agreements based on arbitration.

A n d w o m e n in

the cotton mills have only to show that the ever in
creasing numbers of spindles and shuttles, and the
ever increasing rate of speed required of them by
the improvement of machinery, are wearing out
their working energy, in order to be entitled to l e g
islative restriction upon their working hours under
the reasoning of this admirable decision. To
w o m e n driving foot-power machines under th
sweating-system, and to the employees in countless
other occupations, the same reasoning applies.

For

the purpose of ascertaining which occupations are
injurious, there might well be comprehensive inves
tigations by boards of health and bureaus of labor.
T h e fact that the hours of labor of adult m e n can
be restricted by statute only in occupations proven
injurious to the health, is emphasized a n e w by the
decision of the Supreme Court of the United States
in the case of Lochner vs. N e w York, where the
court said: “ The law must be upheld, if at all, as
a law pertaining to the health of the individual
baker. It does not affect any other portion of the
public than those w h o are engaged in that occupa
tion. Clean and wholesome bread does not depend
upon whether the baker works but ten hours per
day or only sixty hours a week. The limitation of
*Supreme Court Reporter,Vol. 25, p.539 etseq.
159

C

S O M E

ETHICAL

GAINS

the hours of labor does not come within the police
The mere asser
powers on that ground. .
tion that the subject relates, though but in a remote
degree, to the public health, does not necessarily
We
think
render the enactment valid. .
that there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one to
that degree which would authorize the legislature
to interfere with the right to labor, and with the
right of free contract on the part of the individual,
either as employer or employee. In looking through
statistics regarding all trades and occupations, it
m a y be true that the trade of a baker does not ap
pear to be as healthy as some other trades, but it is
also vastly more healthy than still others. To the
c o m m o n understanding, the trade of a baker has
never been regarded as an unhealthy one.”
In N e w York, an extension of the statutory right
to leisure followed directly upon the decision of the
United States Supreme Court in the case of Holden
vs. Hardy. As has been shown elsewhere, the
hours of work of w o m e n over the age of twenty
one years, engaged in commerce and manufacture,
were unrestricted in that state until 1899, when the
legislature, encouraged by this decision, restricted
to ten hours in one day and sixty hours in one
week, the labor of w o m e n engaged in manufacture.
The Supreme Courts of Nebraska' and W a s h i n g
ton? have sustained statutes modeled on those of
1
W e n h a m vs. the State, 91 Northwestern Reporter, 421.
Statute enacted Mar. 31, 1899.
?State vs. Buchanan, 70 Pacific Reporter, 52. Statute en
acted 1901.
160

JUDICIAL

I N T E R P R E T A T I O N

Massachusetts for the protection of w o m e n in their
right to leisure, the court of Washington citing the
decision of Massachusetts and the Supreme Court
of the United States in support of its opinion, and
observing that the Illinois decision is the only one
by which an act of this kind has been declared un
constitutional by a court of last resort.
In Missouri, the provisions of the Utah law re
stricting to eight hours the work of miners, adopted
by the legislature and sustained by the Supreme
Court of Missouri, are n o w in force.
It has been related that the legislature of C o l o
rado inquired of the Supreme Court of that state
whether the provisions of the Utah law would be
constitutional if enacted in Colorado, and was as
sured that they would not be constitutional.

In

spite of this assurance, such provisions were enacted
by the legislature in 1899. In July of the same
year a case arising under the statute was carried
to the state Supreme Court and the law was pro
T h e people of Colorado
nounced unconstitutional.
then followed the example of the people of Utah
and amended the state constitution by the adoption
of a section authorizing the legislature to enact a
provision similar to that which hadbeen pronounced
constitutional by the Supreme Court in the case of
Holden vs. Hardy. This the legislature of Colo
rado has hitherto failed to do.
The history of Colorado repeats in a spectacular
1 State vs. Cantwell et al., 78 Southwestern Reporter, 569.
Statute enacted March 23, 1901.
?In re Morgan, 58 Pacific Reporter, 1071, July, 1899.
II
161

SOMISOME

ETHICAL

GAINS

manner the experience of Illinois. Statutory rec
ognition of the right to leisure being denied, w o r k
ing people have striven to attain by strikes what
they had failed to obtain by statute. The lawless
ness which has disgraced Colorado, like the lawless
ness which has long disgraced Illinois, is traceable
ultimately to the denial of law by the authorities
which alone can constitute and establish it. In
Illinois the Supreme Court denied a right; in C o l
orado, the legislature.

Inboth states the harm done

is irreparable. Lives have been sacrificed; violence
has taken the place of civic order; the public c o n
science has been outraged. But the Supreme Court
of the United States has indicated the right path;
the way is open ; the remedy is at hand. Other offi
cials can be elected; the will of the people can be
enforced.
The effort of the wage-earners is to establish the
right to leisure; to transmute the unemployed time
of the dull season, with its attendant demoralization
and suffering, into regular daily leisure, with salu
tary opportunity for rest, recreation, education,
family life and self-help by means of savings so
cieties and all those agencies administered by w o r k
ing people themselves which depend for their s u c
cess upon the regular attention of persons free from
over-fatigue and irregular pressure.
It is conceded that the right to leisure m a y be es
tablished by statute for children and minors in all
states and in all industries; for w o m e n in some
states in all industries; for both m e n and w o m e n in
industries dangerous to the health; and, finally, for
162

JUDICIAL

I N T E R P R E T A T I O N

employees of the federal, state and municipal g o v
ernments. It is, however, one thing to have these
points established in principle by the courts, and
an entirely different thing to achieve in practise the
establishment of leisure throughout the industrial
life of the country, in accordance with that principle.
W e r e statutes establishing the right to leisure
already enacted and in force in accordance with the
principles clearly laid d o w n by the Supreme Court
of the United States, the multitude of m e n , w o m e n
and children affected by them would be so great,
the ramifications of industry embraced would be so
far reaching, that relatively little would be left to
the trade agreement with its precarious renewal a n d
threat of strikes to secure enforcement.
The immediate, practical lessons derivable from
this weighty decision, for all those w h o believe that
the right to leisure should be established by consti
tutionalmethods,appear to be briefly as follows:
1. Legislation restricting the hours of labor of
employees in occupations obviously injurious to the
health will not be annulled by the Supreme Court
of the United States on the ground of conflict with
the fourteenth amendment to the Constitution of the
United States.
2. The short working day m a y be established by
statute in the various states for all those occupations
which are in themselves obviously injurious to the
health of employees, and itrestswith the state legis
latures to decide which are such occupations.
3.

Legislation limiting the hours of labor of em
163

S O M E

ETHICAL

GAINS

ployees need not be restricted to w o m e n and minors,
as had been the usage previously to 1898.
4. It is desirable to provide for such legislation
by inserting in state constitutions, wherever there
is not already such an enabling article, 2 provision
similar to the general article of the Massachusetts
constitution, or to the special article providing for
the rights of labor which forms the distinguishing
characteristic of the new constitution of Utah.
It is always to be remembered that these things
do not occur spontaneously; they are the fruits of
long and patient endeavor. Adverse decisions in
states have cumbered the earth with error, discour
agement, apathy, if not actual antagonism to this
sane and hopeful, though slow and difficult, method
of ethical gain through legislation.
The decision of the Supreme Court of the United
/ States in the case of Holden vs. Hardy did but open
the way, by sustaininga statute affectinga few h u n
dred men in a state not highly developed indus
trially and by affording a precedent national in its
scope, whereby m a y be done over again successfully
work which, in several states, had once been done
in vain. Yet itassures ultimate success to the long
striving for the statutory enactment of the right to
leisure.
State constitutional conventions must be held;
state constitutions modified; legislatures induced to
act wlien authorized to do so; state Supreme Courts
brought to follow the precedent set by the Supreme
Court of the United States. Years must be c o n
sumed in the work of education and legislation be
164

JUDICIAL

I N T E R P R E T A T I O N

fore the full fruits of this enlightened judicial inter
pretation can be reaped and enjoyed by working
people throughout the Republic. Yet the ethical
gain accruing at every step of the long process is
amply worth the exertion which itcosts.
Trade Agreements and Statutes. Itis possible
that at present a larger number of people enjoy
some degree of settled daily leisure by means of
trade agreements specifying nine or eight hours as
their day's work than by reason of statutory provi
sions. Yet this is, from the point of view of the
welfare of the community, the less desirable method
of securing leisure, for several reasons. Leisure
obtained in this w a y rests upon no acknowledged
legal right; it is gained by struggle and rests upon
the power ofthe organizationson both sidestomain
tain the terms of an agreement, enforcing them by
strike or lockout; it is never final, but always sub- ? ,
ject to cessation at the termination of the agree
ment; its existence for however long a time estab
lishes no legal right; at best it creates only a valu
able usage. Finally, this method of establishing
some degree of settled daily leisure is open only to
employees in those occupations in which the
strongest type of trade organization develops; i. e.,
in which strength and skill are both required, and
w o m e n , children, and unskilled or feeble m e n are
kept out of the labor market by the conditions of
the trade itself. Such occupations are those of the
locomotive engineer, the typographer (printing in
volves not only skill in setting type but strength to
lift forms), the pilots of the ocean harbors and the
165

3

S O M E

ETHICAL

GAINS

great lakes, certain branches of mining and ore re
duction, and the buildingtrades, with some branches
of manufacture. The nature of the work selects
m e n of certain qualifications, bodily, mental and in
dustrial, in all these cases; and such m e n are, in the
nature of the case, better able to make favorable
terms for themselves than can be made by the ten
year old children of the Georgia cotton mills, or the
victims of the sweating-system in N e w York City.
For children and young girls, leisure assured by
means of trade agreements of their o w n is unthink
able. Such workers can derive it by this method
only indirectly and under exceptional circumstances,
as w h e n a trivial minority of them are engaged at
work which interlocks with the work of m e n em
ployed in a trade bound by such an agreement.
The maintenance of leisure by means of a trade
agreement limiting the number of hours in a day's
work, presupposes the permanent maintenance of
militant trade organizations of selected workers
ready to meet on their o w n terms any organization
of employers. Indeed, for m a n y years the m e n in
such occupations as have been indicated willingly
relied upon the strength of their organizations for
obtaining leisure, as well as wages and conditions
satisfactory to themselves.
With all their well-recognized disadvantages as a
method of obtaining leisure, trade agreements re
main indispensably necessary throughout a wide
range of industry, because, as appears from the
foregoing examination of the leading cases on the
subject, statutory provision for daily leisure for
166

JUDICIAL

I N T E R P R E T A T I O N

adult male workers in the employ of corporations
and private employers is limited, in the opinion of
the Supreme Court of the United States, to those
industries which are, or m a y be, injurious to the
health. In the case of non-injurious occupations
leisure for m e n will have to be obtained and m a i n
tained through trade agreements.
The right to leisure, deeply felt by workingpeople
to be a h u m a n right which they are determined to
assert, has been the subject of ceaseless struggle and
will continue so to be until its assured possession by
all the people takes it out of the realm of conten
tion. W h e n , therefore, the Supreme Court of the
United States limits the power of the states to re
strict the hours of work of adult citizens, to occupa
tions injurious to the health, it thereby relegates to
the trade organizations and their trade agreements
the task of maintaining, as a h u m a n right, by mili
tant exertions, that leisure which it fails to assure
to a very large class of voters.
Strikes on the largest scale, in which the estab
lishment of leisure constitutes an important element
of contention, are to be expected as an integral part
of industrial life so long as the Supreme Court of
the United States maintains the position that the
freedom of contract cannot be interfered with for
the purpose of establishing by statutory provision
daily leisure for adult employees in non-injurious
occupations conducted by corporations and private
employers. This is the inevitable result of devolv
ing upon trade agreements, in the case of adult male
employees not engaged under contract by any g o v
167

S O M E

ETHICAL

GAINS

ernment and not engaged in an injurious employ
ment, the function performed by statutory provi
sions in the case of other large classes of w o r k
ing-people. In the occupations thus outlawed, the
result of the outlawry is the recourse to extra-legal
means of asserting the h u m a n right which has not
yet become a statutory right.
The improvement of machinery is incessant; the
output increases; every occupation becomes more
productive. On the other hand, the pressure of
competition weighs upon employers; dividends must
be derived, irrespective of the strain upon em
ployees. W o r k i n g m e n elect to receive a part of
their share of the increased productivity of their
labor in the form of a reduced working day, as
added daily leisure; and, since the court tells them
that this cannot be done by legislation, they have
recourse to the one alternative, the trade agreement,
enforced by strikes.
The right to leisure is a h u m a n right in process
of recognition as a statutory right. Wherever it
is established, the objects of struggle between em
ployers and employees are in so far reduced.
W h e r e , on the other hand, courts have held that the
right cannot be recognized and established by stat
ute, a ground of incessant contention is set up. In
such communities, peace m a y be enjoyed by the
public when, in a given trade, the inequality be
tween the parties is such as renders a demand for
regular leisure utterly hopeless, as in the sweated
trades or trades in which children and w o m e n are
present in large numbers, e. g., the Southern cotton
168

JUDICIAL
mills.

I N T E R P R E T A T I O N

Or peace m a y temporarily exist when both

parties are so equally powerful that both fear w a r
fare, and both profit by truce. This peace, h o w
ever, is always in danger of coming to an abrupt
end by the introduction of some n e w machine, or
by the immigration of some n e w and especially
adaptable body of laborers.
Critics of the effort to establish by statute the
right to leisure m a y contend that the process is an
intolerably slow one, that a statute, also, is liable to
termination by repeal, is as little stable and p e r m a
nent as a trade agreement and m a y prove exces
sively difficult to enforce. Such critics can easily
make out a strong case for their contention. It is
true that, after the constitution of a state authorizes
the legislature to act, the legislature m a y fail to do
so, as has been shown by recent events in Colorado.
O r , a legislature m a y enact measures which are
illusory for want of penalties, or by reason of ex
ceptions such as that which weakens the restriction
upon the hours of labor of w o m e n in N e w York.
Or there m a y be no provision for the appointment
of factory inspectors, as in the case of the recent
child-labor law of Alabama, which provides that
children under the age of thirteen years shall not
be employed at night in cotton mills, but makes no
provision for officials to enforce the prohibition, and
in the case of the mercantile employees law of N e w
York City, where the Retail Dealers' Association
succeeded in 1898, and each subsequent year, in
having stricken from the municipal budget all ap
propriation for the salaries of mercantile inspectors.
169

S O M E

ETHICAL

GAINS

Or, effective officers m a y be removed and incompe
tents appointed in their places, as has happened in
m a n y states.
Moreover, vigilance is needed even where w o r k
able statutes are enforced by faithful officers, lest
valuable measures be repealed after being in force
so long as to seem beyond all danger of attack. A
case in point is the repeal of the so-called “Fifty
Five Hours L a w ” in N e w Jersey, which had re
mained unaltered upon the statute books from 1892
to 1903. This statute provided that w o m e n and
minors under the age of eighteen years should not
be employed in manufacture longer than ten hours
in one day and fifty-five hours in one week, or after
six o'clock in the evening of the first five days of
the week and noon on Saturday. Although this
law had never been passed upon by the court of last
resort in the state, or enforced with vigor by the
factory inspectors, it had nevertheless been the
means of assuring unusual leisure to w o m e n em
ployed in industries in which m e n maintained p o w
erful organizations and insisted upon compliance
with the letter of the law, thus facilitating their
o w n success in demanding the same leisure. The
statute was so well regarded by a large number of
employers, and a larger number of employees, that
its repeal, in 1903, came as a distinct surprise.
Statutes restricting the hours of work of railway
employees, in the interest of the safety of pas
sengers, have in some cases been so defiantly and
persistently violated by companies (holders of
charters and franchises) as to drive the employees
170

JUDICIAL

I N T E R P R E T A T I O N

into striking in order to enforce the obedience of
their employers to the terms of the law, when re
course to the courts seemed to the workers not cer
tain to bring forth a decision sustainingthe terms of
the statute.
Yet, acknowledging the inevitable slowness of the
process of statutory recognition of the right to
leisure, and admitting all the difficulties and obsta
cles to be encountered in making progress and in
maintaining it when made, it nevertheless remains
truethat itis moredignified for the working people
and infinitely more wholesome for the community
to be enlisted in behalf of the enactment and en
forcement of the law, than engaged in striving to
establish and maintain a right without recourse to
the law.

171

CHAPTER

V

T H E R I G H T OF W O M E N TO T H E B A L L O T
It is n o w generally accepted that that legislation
has proved wholly beneficent which has, during the
past half century, afforded to w o m e n and girls their
present wide-spread opportunity for education. In
deed, we are so accustomed to itthat we realize with
difficulty the fact that such provision on so large a
scale is new to h u m a n experience.

As a result of

this far-reaching movement there is present in the
community an element of distinctive intelligence
available for social and civic usefulnesssuch as never
before existed. That we are far from getting the
full benefit of the virtue and intelligence stored up
in the community; that the leisure and culture which
have come to home-keeping w o m e n might be utilized
on a far larger scale than we have yet attained; that
an ethical gain has been made whenever the new in
telligence of w o m e n has become available inthe body
politic; and, finally, that other important gains m a y
reasonably be expected in proportion as its avail
ability is extended by conferring the franchise upon
w o m e n , itis the object of this chapter to indicate.
It has been urged by opponents of the enfranchise
ment of w o m e n , that there are other methods by
which

this intelligence m a y
172

be utilized without

RIGHT

OF

W O M E N

TO

BALLOT

active participation in political life, and this is not
denied. Indeed, m e n w h o are faithful in the per
formance of their duty as voting citizens carry on,
in addition thereto, m a n y lines of social and civic
activity. They do not, however, appear to believe
that they would be more valuable in the performance
of these voluntarilyassumed tasks ifrelieved oftheir
political duties. It is not members of philanthropic
and civic committees w h o absent themselves from
the polls; on the contrary.

W h y , then, should not

w o m e n follow both lines of activity and prove even
more effective in their philanthropic and educational
work, by reason of their added powers as voting
citizens?
Does anyone believe that the efforts of the Public
Education Association of N e w York would have
been less effective during the past ten years, if they
had been reënforced by the presence in the electorate
of the mothers, the teachers, and the other interested
w o m e n , including themembersof theAssociation it
self?
The fear lest the votes of ignorant w o m e n m a y
outweigh those of the intelligent could be met by
the imposition of an educational requirement such as
is already in force in Massachusetts. The utterly
unreasonable fear that the votes of the depraved
m a y outnumber those ofthe righteous scarcely needs
mention. The balance of virtue and depravity
a m o n g w o m e n compares at least fairly with that of
the present electorate.
W o m e n ' s Opportunities on Public Boards a n d
Commissions.- Naturally, the first tentative step in
173

S O M E

ETHICAL

GAINS

the direction of securing for thecommunity thebene
fit of the newly attained intelligence embodied in
educated w o m e n , took the form of appointment of
w o m e n upon public bodies havingto do with w o m e n
and children. In this connection, however, there
must be noticed the curious phenomenon that some
w o m e n , whose valuable services entitle them to a re
spectful hearing, have expressed the opinion that, in
such positions, w o m e n m a y be of greater value by
reason of their non-political position, which gives
assurance of disinterestedness not thought attainable
by voting citizens. It seems to indicate a not unnat
ural lossof the senseofproportion that these faithful
servants of the community, decply impressed with
thegreat need forwork suchastheyhave been doing,
should forget that their number is so insignificant as
to weigh but lightly in comparison with the disad
vantage arising from the loss out of the voting mass
of the accumulated intelligence of the vast body of
w o m e n , including all the teachers. Indeed, these
alleged, exceptional cases of advantage arising froni
the non-political position of w o m e n serving in public
capacities must be regarded as fully offset by those
other cases in which able w o m e n , also serving on
boards, have found themselves shelved by being
placed on committees and sub-committees whose
work was unimportant; and far more than offset by
the exceedingly small number of w o m e n serving at
all in such capacities compared with the great n u m
bers w h o are qualified by nature and education for
this work.
.
In general, the statement is true that in states in
174

RIGHT

OF

W O M E N

TO

BALLOT

which w o m e n do not vote, they are not appointed to
salaried positions on public boards and commissions,
unless itis expressly provided in the statute creating
the publicbody that a certain proportion of t h e m e m
bers shall be w o m e n . W h e r e the word m a y is used,
there is a strong tendency towards the gradual re
placement of non-voting w o m e n by voting men.
A n d in m a n y cases this involves a distinct loss to the
dependent persons in whose interests such public
bodies exist. Nor is this disparity confined to sal
aried positions. It is also most unusual to find an
equal number of m e n and w o m e n on unpaid boards
and commissions, even when the duties required are
such as w o m e n are preëminently fitted for, and
where the numberof available w o m e n of intelligence
is very large, as in N e w York and Massachusetts.
The precarious nature of the opportunity for p u b
lic service open to w o m e n , where they have not been
admitted to the electorate, is well illustrated by an
episode in the recent history of Illinois. During his
term of office, 1893-1897, Governor Altgeld ap
pointed fifteen w o m e n to state boards of education,
health, charities, factory inspection and the m a n a g e
ment of penal and reformatory institutions, a m o n g
them w o m e n of such well-known philanthropic
activity as Miss Julia C. Lathrop, Mrs. Alzina
Stevens, and Dr. Sarah Hackett Stevenson. All
these appointees served the state faithfully and s e v
eral with distinction. The succeeding governor,
however, continued the appointment of only two of
the fifteen, replacing the remainder with m e n , w h o
were voters.
175

S O M E

ETHICAL

GAINS

A more recent example ofthe same precarious op
portunity for service is afforded by the experience of
the w o m e n members of the London School Board.
F r o m 1870 to 1902, w o m e n both voted for the m e m
bers of the board and were eligible for election to it,
several w o m e n having served long and usefully.
But in 1902, Parliament legislated the School Board
out of existence and, in 1903, relegated its duties to
the County Council, for election to which w o m e n are
not eligible. In this case a twofold right,—that of
voting for the members of the School Board and
of serving upon it,was legislated out of existence
after having been exercised for more than thirty
years. Parliament, which used its powers to this
end, is, of course, wholly independent of w o m e n ,
since they possess only the municipal franchise and
the right of voting for members of the School Board.
Obviously those minor forms of the franchise, and
the right of serving on boards for public purposes,
are held by an insecure tenure until the full power,
the Parliamentary franchise, confirms their posses
sion.
Despite the unstable nature of their opportunities,
however, w o m e n have begun to work out interesting
and suggestive changes in certain branches of the
local governments. Thus, in connection with the
police department, which was formerly regarded as
utterly alien to them, w o m e n n o w serve as police
matrons and probation officers, regularly recognized
as officers of the court. W o m e n attendance agents
connected with the schools prevent m a n y children
from needing the attention of the m e n officers, and
176

RIGHT

OF

W O M E N

TO

BALLOT

m a y be regarded as in a sense preventive or substi
tute police. Reformatories for w o m e n and girls,
established and maintained out of the public funds,
and conducted by w o m e n , are beneficentmanifesta
tionsof the sametendency to utilizethe fund of n e w
intelligence for communal purposes. In the same
line of modification of the courts and their personnel
is the activity of w o m e n lawyers as counsel for So
cieties for the Legal Protection of W o m e n and Chil
This is perhaps the most gracious form of
dren.
activity yet accessible to the growing number of
w o m e n w h o h a v e r e a d law;and themarked improve
ment in the attitude of the Bench towards w o m e n
and minors in both civil and criminal cases of im
portance, observable during the past fifteen years,
is believed by the writer to be directly due to the
patient efforts of m a n y such societies.
W o m e n w h o serve as inspectors of immigrant
w o m e n and children, both meeting incoming vessels
at the Atlantic ports and awaiting the arrivals at
Ellis Island, are filling posts of duty of the highest
value both to the immigrants and to the society of
which they m a y become a part; as are the w o m e n
acting as factory inspectors, sanitary inspectors and
inspectors of tenements. The addition of nurses
w h o have received hospital training to the federal
army and to the public schools of the city of N e w
York, is another form of enrichment of the re
sources of the community by reason of the newly
acquired intelligence a m o n g w o m e n . Unfortunately,
the small number and insecure tenure of office of
these valuable servants of the public still deprive the
12
177

S O M E

ETHICAL

GAINS

community of a vast deal of useful service which
cannot become available until the constituencyattains
its full complement of w o m e n voters as m u c h inter
ested in these h u m a n affairs as the present c o n
stituency is absorbed in manufacture, commerce and
transportation.
N e e d of W o m e n in Educational W o r k . B y
nature, by training, and by the accepted usage of the
national life, w o m e n are chiefly occupied with the
care, nurture and education of the young. M o r e
over, for reasons economic as well as pedagogic, the
teachers in the public schools are largely w o m e n . It
was, therefore, in following the line of least resist
ance that w o m e n have, in m a n y places, become eli
gible for appointment or election to the school
boards; or enfranchised sufficiently to vote for the
members of the boards of education. It is the belief
of the writer that the results of such enfranchisement
are conspicuouslybeneficial; that a broad line divides
the communities in which w o m e n perform the duties
of voting citizens in all matters relating to the
schools, from those in which they are prevented from
exercising those functions. It is the commonly ac
cepted division of labor throughout the Republic
that m e n are occupied with business and professional
duties, and w o m e n take care of the children. In
the administration of the schools this division of
labor expresses itself in the fact that the teaching
staff, which comes intodaily contact withthechildren
and is intimately acquainted with theirneeds, is c o m
posed chiefly of w o m e n , but the business of the
schools, the work of the board of education, is con
178

RIGHT

OF

W O M E N

TO

BALLOT

ducted either wholly by m e n or by boards on which
m e n constitute the majority of members. The con
sequences of this division, in communities in which
w o m e n do not vote, are conspicuous. Business prin
ciples (keeping d o w n the tax-rate), modified by
political interest (corrupt awards of contracts, the
spoils system in the appointment of teachers, etc.),
exercise an undue influence,-greater than the c o n
sideration of the interests of the children, which do
not readily become k n o w n to the business-men w h o
compose the boards of education.
A case in point is the experience of the children in
the schools of the city of Chicago. It is stated by
citizens of Chicago, long and intimately acquainted
with the Board of Education, that the membership
of the boardhas in recentyears,been composed with
reference to the industrial and sectarian interests of
the city rather than with exclusive reference to the
welfare of the children. The railroad and trac
tion companies (eager to keep d o w n taxation), the
real-estate and building interests, (alert in the m a t
ter of buildings and sites), the book-trust (ardently
opposed to the introduction of free text-books), the
school furniture companies, and certain ecclesiastical
interests (keen to secure the appointment of teachers
each after its o w n faith), are all said to have been
represented by m e n of excellent ability upon the
Board of Education. But the children and the
teachers appear to have been somewhat lost sight of
in the general concentration of zeal for the interests
of manufacture, commerce and sectarian religion.
While itis true thatthere have been, foranumber
179

S O M E

ETHICAL

GAINS

ofyears, one or more w o m e n members of the Board
of Education in Chicago, they constituted a mere
vanishingminorityof thewhole number of members,
not sustained by a constituency of voting mothers,
teachers, and other interested w o m e n , but appointed
by the mayor of the city, apparently as a concession
to the demand that the Board of Education shall not
be wholly devoid of w o m e n . Their influence has,
therefore, been of the slightest and seriously disap
pointingto such friendsof thechildren andtheteach
ers as have hoped unduly much from the mere pres
ence in the membership of the board of w o m e n ,
unsustained by the power of an interested voting
constituency.
S o m e ofthe results ofthe preponderant interest of
the Board of Education in subjects apart from the
welfare of the children of the city of Chicago, are
picturesquely shown by the experience of a young
neighbor of the writer. This Italian girl entered
thepublicschools in early childhood, attending irreg
ularly after the fashion of Italian children and with
the connivance of an incompetent truancy depart
ment.

In the course of eight years devoted chiefly

to the study of language, she acquired the least pos
sible broken and ungrammatical English. Seeing
on the wall of the settlement a picture of W a s h i n g
ton, she said confidently, " I k n o w him, first m a n ! "
Being asked his name she said with certainty in her
tone: " I learn him in school. First in peace, first
in war, first in hearts of countrymen ! Eyetalian
man.”. Being pressed for his name, this product of
the schools said, "Garibaldi!"
180

RIGHT

OF

W O M E N

TO

BALLOT

Such was the foundation of English, history, and
intelligent devotion to the ideals of the American
Republic with which this adopted citizen left school,
and entered upon the seriousbusiness ofeducation in
a neighboring bakery belonging to the biscuit trust.
There she learned at once that her continued employ
ment depended upon her becoming one of the Lady
Cracker Packers, whose ideals she found it easy to
understand and appreciate. Within a year she
learned to vote as to the amount of dues which she
and her fellow workers should pay, and h o w these
dues were to be expended, for what purposes and by
what officers, in the election of w h o m she naturally
participated. She attended meetings, at which the
objects of the organization were explained, and was
taught that her short working day depended upon
the strength of the organization. To this organiza
tion she devoted the fervorofthe Latin temperament,
which had never been aroused by the daily per
functory salute to Old Glory at the opening of the
sessions of that school which had left her to believe
that George Washington's name was Garibaldi. At
the age of sixteen years this girl was thoroughly ac
customed to exercising in the union of her trade all
those functions which at twenty-one she will still be
unqualified for in the larger life of the c o m m o n
wealth. The union looms correspondingly large in
her consciousness.
The state of Illinois, through the decision of the
supreme court, tells this girl that it is powerless to
restrict the hours of daily w o r k which the biscuit
trust requires of her; but the union confidently un
181

S O M E

ETHICAL

GAINS

dertakes the task by means of organization and its
label, with the possibility of a strike in the b a c k
ground. W h e n the state tells her through another
decision ofthe court that itis powerless to constrain
the biscuit trust or any other employer to pay her
wage weekly in money of the United States, the
union performs this function effectively by the same
means,-organization, the use of the label and the
possibility of strikes.
W h e n the lads with w h o m sheworks reach the age
of twenty-oneyears, their interestsare broadenedand
1

their allegiance to the union divided by the demands
ofthepolitical parties upon their attention. Even on
themostsordidplane oftheir immediate self-interest,
the city council and the state legislature claim their
thoughts. Butthegirlon reachingtwenty-one years
will have escaped from all farther educational influ
ences; will have been long married and actively en
gaged in bringing up in the most unreasonableman
ner the large family which continues to the second
generation in the Italian colonies. She will feed her
infants bananas, bologna, beer and coffee; and m a n y
of these potential native citizens will perish during
their first year, poisoned by the hopeless ignorance
of their school-bred mother. She, however, will al
ways remain a faithful ally of the union as the only
institution which has ever invited her intelligent par
ticipation.
However convinced one m a y be of the value of
the trade union in the community, it is hardly reas
suring that, in the presence of the vast machinery of
public education, the union should be, in practise,
182

RIGHT

OF

W O M E N

TO

BALLOT

the chiefeducational agency vitally affecting the chil
dren and young girls in the immigrant colonies of
the great manufacturing centers.
This girl is only one of thousands w h o are carried
on the rolls of the public schools for years, but whose
lives are so little touched by the work of the schools
that, after two or three years in the factory, they
have forgotten h o w to read unless, indeed, they are
gathered into some union which carries forward their
education in a one-sided manner, wholesome enough
if balanced by other broadening and deepening ex
periences, but sadly inadequate as a substitute for
the education supposedly afforded by the public
schools to all the children.
Wherever a powerful business interest is involved,
laws are readily enforced in its behalfand the a d m i n
istration of local government rises to meet its re
quirements. This has been strikingly illustrated in
the efficiency of the fire department of Chicago
throughout all the years of the uttermost political
corruption of the city, when every other department
reached the deepest depths of incompetence and in
efficiency. The fire marshal of the underwriters
arrives at the scene of every conflagration, large or
small, as soon as the city's firemen, if not sooner;
and woe betide the m a n , or beast, or machine that
falls below the highest achievement possible in every
given case.
It is the contention of this chapter that w o m e n , all
w o m e n , o f a givencommunity havethe sameinterest
in the children that the underwriters have in the c o n
flagrations and the administration of the fire depart
183

S O M E

ETHICAL

GAINS

ment. But, while the underwriters are voters, c o n
tributors to campaign funds, and representatives of
the keenest interests of the business men, and have
for all these reasons, very great local power to con
strain the municipality to keep its fire department up
to the highest point of efficiency, the w o m e n of C h i
cago have no corresponding power of making felt
their interest in the schools. The community is,
therefore, denied a reënforcement of moral power,
and of educational interest, which it sorely needs to
counterbalance the excessive pressure of businss in
terest.
To the preponderance of the interests of business
over the interests of the children, expressed in the
majority of business m e n and the minority of w o m e n
on boards of education, is due, doubtless, in other
cities as well as in Chicago, the idiosyncrasy of the
curriculum whereby the daughters ofworking-people
aretaughtjust those things which tend tomake them
valuable as stenographers, typewriters, cheap b o o k
keepers, clerks, copyists,—if they stay in school
throughout the years of compulsory attendance. If
they drop out earlier, they have still acquired habits
valuable for factory hands of low grade and miser
able pay. They have been taught punctuality,
obedience, working in crowds, listening to instruc
tions. W h a t more does a cheap factory hand need
for beginning w o r k ? But of the qualities which fit
girls for home-making and intelligent motherhood,
what preparation for the development of these have
our business m e n been able to imagine and introduce
into the curriculum? True it is that, in rare cases,
184

RIGHT

OF

W O M E N

TO

BALLOT

a w o m a n serving upon a school board has carried
weight enough, by reason of unusual personality, to
overridethe adverse pressure of other influences and
secure the introduction of some slight beginnings of
domestic science into the schools. But this has oc
curred in those schools which needed it least, i. e.,
in the upper grades, which are not reached by the
children of day laborers. For the general introduc
tion of domestic science into the lower grades, in
which the children of the immigrants spend their
sadlyfew school years, the lack of spaceand the cost
of equipment on the necessary large scale have
hitherto been effectively deterrent. It is here that
Boston stands forth as a fine example of the effects
of admitting to the electorate in the matter of the
schools t h o s e w h o k n o w most ofthe children's needs,
the w o m e n of the community, includingthe mothers
and theteachers.
In London, too, for more than a quarter of a cen
tury, the w o m e n elected to the School Board have
assured to the girls in the board-schools at least in
struction in cooking. As long ago as 1879 the
writer enjoyed the privilege of visiting, with Miss
Hill, a member of the board, one of the cooking
centers in a London board-school to which little girls
came from neighboring schools; and the m e m o r y
abides quite fresh after the lapse of so m a n y years,
of one little girl who, after cooking peas, carefully
wrapped them in a copy of the London Times to
carry them h o m e to a family whose tastes evidently
needed cultivation in the matter of vehicles for the
transportation of soft, moist, w a r m vegetables.
185

S O M E

ETHICAL

GAINS

D u e to the preponderance of the interests of busi
ness over the interests of the children in the c o m
positionofschoolboards including f e w o r n o w o m e n ,
is the almost universal absence of adequate school
accommodations. It is not an accident, but a fact of
the highest significance that the two important cities
in theUnited Stateswhichafford school a c c o m m o d a
tions for all the children throughout the period of
compulsory attendance at school are Boston, where
w o m e n vote for the members of the Board of E d u
cation, and

Denver, where

women

vote for all

officials. Does anyone doubt that the enlightened
policy of Boston and of Denver is due, in large
measure, to the influence of the w o m e n teachers in
the electorate? Granted that, in Boston, the Build
ings and Grounds Commission is separate from the
Board of Education, the interest in school questions
engendered by the annual election of members ofthe
Board of Education, and the general participation of
w o m e n voters both in the election and in the annual
lively campaign which precedes it, keep the tax
paying public apprised of theinner condition and life
of the schools to an extent impossible by any other
means and actually not approached in other cities.
By reason of the rapid growth of American cities,
the provision of adequate seating facilities for the
increasing number of children constitutes one of the
most difficult problems with which boards of educa
tion have to deal. Families move from older p o r
tions ofacitywhereschoolbuildingsarefirst erected,
and itis not easy to foresee and provide for the s u d
den expansion of one suburb or another. Moreover,
186

RIGHT

OF

W O M E N

TO

BALLOT

there are influences at work uninterruptedly, bring
ingto bear silent pressure adverse to theexpenditure
of funds sufficient toprovide seats and equipment for
all the children. Taxpayers desire a low tax-rate,
not perceiving that cheap primary schools involve in
the long run costly reformatories, and jails, a c c o m
panying an untrained and unintelligent working
class. Corporations desire an abundant supply of
availablechildrentoworkat trivial wages. Children
for w h o m there is no school room begin to work
earlier in N e w York City despite the excellent n e w
statutes, than children in Denver or in Boston w h o
are kept in school to the age nominally required in
N e w York. In N e w York city, where the Board of
Education is appointed by the Mayor, w h o in turn
is elected by the suffrages of m e n onlyand w h o does
not usually appoint even one w o m a n to the central
board, the deficit in school seating accommodations
has not for m a n y years been less than fifty thousand.
Indeed, no administration ventures to take a school
census, because no administration can afford to let
the actual deficit be accurately ascertained and defi
nitely located. It is politically safer to pooh! pooh!
the estimates of the friends of the unfortunate ex
cluded children and the children in half-day sessions,
than to face the facts as they would be recordedby a
school census.
The inability ofboards composed wholly or chiefly
of business m e n to deal adequately with the business
of the board, i.e., theeducation of the children ofthe
city, is revealed on a vast scale in the case of the chil
dren w h o fail of promotion. The most overcrowded
187

S O M E

ETHICAL

GAINS

classes are the lower ones, and these are congested
largely by reason of the presence in them of children
w h o have been in school long enough to have been
moved on into higher and less crowded classes if
they had been ready for promotion in due order. In
London, where w o m e n have voted for the School
Board and have served on it for thirty years, the
scope and gravity of the problem of the children
w h o fail of promotion have long been recognized,
and comprehensive efforts to deal with it are per
sistently made. In N e w York, where the same prob
lem has existed since the foundation of the public
schools, it was not discovered, and then by a w o m a n
superintendent, until the year 1903, when the n e w
law took effect which requires that children, before
beginning work in manufacture and commerce, must
be fourteen years of age and must also have a c c o m
plished as much of the work of the curriculum as a
childoftwelveyearswhohad failed ofnopromotions.
Several causes of the failure of children to move for
ward in due order are removable by the Board of
Education, e.g., the half-time classes arising from
insufficient school accommodations; the excessive
number of children carried on the roll ofone teacher;
the suspension of unruly boys who, until very re
cently, were not brought before a magistrate and
committed to a school, but merely turned into the
street to waste their school years in idle mischief or
to go to work in violation of the child-labor law; the
dismissal of children by visiting physicians (before
the very recent appointment of nurses w h o n o w fol
low up the children and get them back into school
188

RIGHT

OF

W O M E N

TO

BALLOT

with the least possible loss of time). Other causes
of the failure of children to be promoted are m u n i c
ipal defects curable if the Board of Education made
effective demand for cure. A m o n g these is the in
sufficient provision forhospital care of infectious and
contagious disease. Because scarlet fever and
measlesare left tobenursedinthetenements,healthy
children of the family spend weeks and months in
banishment from school and fail of promotion
through no fault of their own.
Does anyone doubt that American cities which
should follow the example of London and enlist
w o m e n of discretion and leisure as school visitors
would makeshort w o r k o f the cloggingof the lowest
grades by children w h o are wasting their o w n time,
that of the teachers, and that of the children w h o
properly belong in these grades? Could there be a
more unbusinesslike procedure than this defeat of
the purpose of the schools, for want of the personal
contact of w o m e n with the children, in work supple
mentingthatofthe schoolroom tasksofthe teachers?
It is clearly due to the passive rôle assigned to all
w o m e n except those professionally engaged in the
schoolroom .
The consequences of this clogging of the lowest
classes are m a n y and evil.

A m o n g them is the tru

ancyofchildrendiscouragedby failingofpromotion,
with the attendant probability of arrival in the
juvenile court under the charge of playing ball in
the street, or sonie similar anti-social offense, or of
arrival at the legal age for beginning work without
having accomplished the meager amount of school
189

S O M E

ETHICAL

GAINS

work required by the law, an experience which bears
most heavily upon those families in which itis most
liable to occur,-those of the very poor.
In this relation, the interests of the teachers and
the children are strictly identical; itis most desirable
for the teachers that school accommodations should
be abundant and wholesome; that the children inone
class should not exceed thirty; that salaries for teach
ers should be such as to enlist in the profession able
and well-trained persons. To enfranchise the teach
ers is to give to the children the best informed pos
sible advocates in the electorate, and to strengthen
every effort made on behalf of the unfortunate chil
dren w h o n o w fail of promotion year after year and
finally defeat the object of the schools either by fall
ing out without completing even the requiredmini
m u m of work, or else cover each stage long after
they have passed the age to which it is appropriate,
and when it has lost all real value for them .
Protection of Children in Colorado.- C o m
pared with the children of N e w York City the chil
dren of Denver appear to be singularly fortunate in
the protection which they receive by means of legis
lation. A child in Denver is required to attend
school regularly to the age of sixteen years, unless he
is released from this duty by the joint action of the
superintendent of schools and the county judge; and
in that case he must complete the work of the first
eight years of the curriculum of the public schools.
A boy released from school attendance is subject to
the supervision ofthe two authorities mentioned, and
can work only on condition thathis record continues
190

RIGHT

OF

W O M E N

TO

BALLOT

satisfactory to them, being kept on the roll of the
juvenile court, not as an offender, but as a ward of
the court. If he should be required or permitted by
an employer to work longer than eight hours in a
day, or at an occupation injurious to his health, it
is within the power, and is clearly the duty of the
superintendent and the judge to cancel his permit
and return him to school or require a change of his
occupation.
W h e r e the great body of children in a city are
kept in school until they reach the age of sixteen
years, and all must finish the work of the first eight
grades of the public schools, the rising generation
goes into the bread-winning occupations with an un
usually high level of efficiency of mind and body;
and where all the wage-earning children under the
age of sixteen years are virtually wards of the court,
the exploitation or demoralization of children by
means of their work becomes almost impossible.
In Colorado, children under the age of sixteen
years enjoy, also, an unusual degree of protection by
reason ofthat briefand comprehensive statute which
renders any person w h o contributes to the delin
quency of a child liable to a fine or imprisonment not
exceeding one year. Under this recent statute, the
dealer w h o sells a cigarette to a boy, the mother w h o
sends a child to fetch beer, or w h o permits him to
read dime novels so that he is led to run away, the
telegraph operator w h o sends a boy to a disreputable
house to deliver a telegram or message, the coal
train conductor w h o permits a child to "hop a train "
or to pilfer coal,-one and all m a y be brought into
191

S O M E

ETHICAL

GAINS

court, placed under a suspended fine for the first
offense, and sent to jail for a year if any continue to
offend. In practise, more than a score of fathers
were sent to jail during the first half of the year
1904, for contributing to the delinquency of their
children. Hardship to their unoffending wives aris
ing from loss of the earnings of the bread-winner
was obviated by arranging to have the offender in
jail only from Saturday noon to M o n d a y morning,
the remainder of the sentence being suspended.
It is the c o m m o n experience that statutes of ex
ceptional rigor for the protection of children are apt
to remain dead letters, and this has been sadly true
of child-labor laws, where powerful corporations
have secured the removal of officials w h o were c o n
scientious and efficient in enforcing such measures.
H o w , then, is it to be accounted for that the county
judge of Denver has for years enforced penalties
upon saloon keepers, cigarette dealers (irrespective
of their relation to the brewers, the whiskey trust
and the cigar trust), telegraph operators (agents of
two of the most powerful corporations, and the larg
est single employers of boys in the Republic) ; and
has, nevertheless, not only not been retired from
office but, on the contrary, was the only candidate
upon w h o m every political party in Denver united at
the last election? Citizens of Denver assert that
this significant fact is due to the voting mothers,
teachers and other interested w o m e n in Denver. It
is a part of the recent history of the city that, when
the corrupt political machine found Judge Lindsey
unbending in his opposition, it dropped his name
192

RIGHT

OF

W O M E N

TO

BALLOT

from the proposed list of nominees for the next elec
tion. But when the w o m e n of Denver heard of this,
they held meetings and made k n o w n their will in
such effective manner that, when the day came, no
other name appeared as candidate for the office of
county judge upon the ballots of any of the seven
political parties which complicate elections in that
lively city.
Opponents of the extension of the franchise to
w o m e n have pointed out that political corruption in
Colorado still exists, despite the fact that w o m e n
have for ten years been admitted to the electorate.
But in so doing, they mistake the direction in which
ethical gain is to be expected to result from the en
franchisement o f w o m e n . Political corruption is not
a matter of sex; itresults from the unethical basis of
our business activities, and cannot be abolished until
that basis is altered and made ethically sound. The
ethical gain which m a y reasonably be expected from
admitting w o m e n to the electorate is the extended
activity of those members of the community w h o are
primarily interested in the nurture and safeguarding
ofthe young.
A suggestive comparison is that between the cher
ishing and nurture afforded to the children of C o l o
rado by means of legislation due to the voting c o n
stituency of w o m e n , and the unsheltered state of the
children of Georgia, where w o m e n are in every w a y
excluded from public life, and where boys and girls
at anytenderage arewholly without protection from
the demands and the cruel neglect of cotton-mill
owners, as is indicated in the decision of the Su
13

193

S O M E

ETHICAL

GAINS

preme Court of Georgia in the case of the Canton
Cotton Mills.
Equally suggestive is the comparison of the de
fenseless position of girls in South Carolina, where
w o m e n have no political power and the age of c o n
sent is ten years, with the careful safeguarding of
girls in Colorado. It is not accidental that one of
the first measures introduced into the legislature of
Colorado after w o m e n wereelectedtothatbody, was
the bill successfully carried by a w o m a n senator,
raising the age of consent to eighteen years, at that
time higher than the corresponding law ofany other
state. S u c h a law affords protection to theboys and
youths of the community which they are wholly un
able to estimate. It saves them those temptations
which beset youth in communities in which, as in
North Carolina, the offense of tempting girls carries
but a slight penalty, if any, with no certainty of en
forcement against a white m a n . W h e n the age of
consent israisedtoeighteenyears,thisis a protection
not only to all the young girls and boys in the c o m
munity, it is a protection to the community itself
against the children of ruined girls. Denver needs
no foundlingasylum likethat institution which c o n
fesses the disgrace of N e w York City. It is at the
oppositepole fromthe legally sanctioned a n d m e d i c
ally supervised vice of the cities of Continental
Europe, with the accompaniment of lock hospitals
and foundling asylums. It n o w remains for C o l
orado to deal effectively with the quacks and their
newspaper advertisements, and to substitute for
their polluting influence wise instruction in phys
194

RIGHT

OF

W O M E N

TO

BALLOT

iology, biology and morals, in the public schools.
Never before in h u m a n history has the right of
the young to pure living, the claim of the adolescent
to guidance and restraint, the need of the child for
nurture at the hands of father, mother, school and
the communitybeen recognizedas inColoradoto-day.
Never have the good influences of good homes re
ceived such reënforcement bymeansoflegislation.
These gains have not been made because the sub
ject matter ever developed political issues. Elec
tions have not hinged upon them. But the accent
has been shifted; the emphasis is different. It ap
pears that, on the whole, the interests ofchildren and
youths are unusually well guarded in a community
whose affairs are all carried on by m e n and w o m e n
together.
Advantages of the Recognition of the Right of
W o m e n to the Ballot. — The slight contribution
of time, thought and effort required of all the voting
citizens, if spent by all, not merely as at present by
m e n , m a y reasonablybeexpected to prevent the need
of much of the remedial and reformatory work n o w
demanded of individuals for individuals. Infancy,
old age and the misfortunes of congenital defectives,
constitute a legitimate claim upon the leisure and
charity of w o m e n , as of men. But the endless,
cheerless task of attempting to repair by philan
thropic methods the wreckage due to bad laws,
which w o m e n have no part in making, and the lax
enforcement of good laws, is a burden which should
no more be inflicted upon w o m e n than the task of
enforcing demands for industrial improvements in
195

S O M E

ETHICAL

GAINS

the lot of workingwomen arbitrarily disfranchised
should be saddled upon workingmen.
Reference has been made to the value of the addi
tion of the w o m e n teachers to the electorate. It re
mains to point out a distinct disadvantage arising
from their continued disfranchisement. It is, for
instance, an anomaly not likely to remain permanent
that m a n y able and successful teachers of civics and
political and industrial history to boys and young
m e n are w o m e n w h o are themselves not voters.
The effect upon the minds of the pupils must be
highly confusing. They seem forced to the infer
ence that these subjects are of minor importance,
since they can be taught by persons w h o are not per
mitted to perform the duties and functions which
form the real content of the teaching. But what
could be more unfortunate for the Republic than to
inculcate in the minds of coming voters any idea
calculated to minimize the importance ofthe subjects
of civic duties and political and industrial history?
In an essay strongly adverse to the admission of
w o m e n to the electorate, published in 1893 by Mr.
Goldwin Smith, there occurs the following passage:
" W o m a n ' s Suffrage is a change fraught with the
most momentous results, not only to the c o m m o n
wealth but to the household. Let W y o m i n g and
N e w Zealand try it, say for ten years.

The success

of the W y o m i n g experiment is publicly proclaimed
and the universe is exhorted to do likewise by
W y o m i n g , whose voice is n o w that of the female
voters. Private accounts are not so favorable, nor
have the neighboring states, which must have the
196

RIGHT

OF

W O M E N

TO

BALLOT

clearest view of the results, been induced to follow
W y o m i n g for the present,
the example. To
W o m a n ' s Suffrage in the United States remains c o n
fined. The N e w Zealand experiment will be more
satisfactory, though N e w Zealand, having nowarlike
neighbors, does not run the same risk of emasculat
ing her government which is run by a European
State. If at the end of ten years itappears from the
two experiments that legislation and government
have become wiser, more far-sighted, and more just,
without detrimenttothe peaceandorderofthehome,
let the world follow the example, and be grateful to
those by w h o m the first experiment wasmade."
It is worthy of note inthis connectionthat, accord
ing to the latest census of the United States, W y o
ming heads the list of all the states when they are
graded according to the number of children between
the ages of ten and fourteen years w h o are illiterate.
Includingthe Indians, W y o m i n g is charged with but
72 such children. Inquiry has elicited the fact that
thisis due directly tothe efforts ofthe w o m e n voters,
w h o long since worked out a plan by which traveling
teachers are sent to remote portions of the state,
where scattered children are gathered from ranges
and ranches until they can read, when the teacher
proceeds to another post and the process is repeated
with another gathering of children.

In order that

the children m a y not forget what they have learned,
traveling libraries are sent in the wake of the
teachers.
It is respectfully submitted that the period s u g
gested by Professor Goldwin Smith has elapsed;
197

S O M E

ETHICAL

GAINS

that the three neighboring states, Colorado, Utah and
Idaho have n o w all followed the example of W y o
m i n g ; that legislation has become wiser, more far
sighted and more just without detriment to the peace
and order of the home. Moreover, the Australian
Federation and South Australia have followed the
example of N e w Zealand.
farther delay?

W h a t is to be gained by

Within the family an interesting and ennobling
modern relation dueto the education of w o m e n is the
mutual sympathy, respectand understandingbetween
the college-going youth and his college-bred mother.
The unconscious contempt, mitigated by affection,
felt by Pendennis at Oxford for Helen at h o m e in
the country, is alien to the experience of sons whose
preparation for college has been guided by the joint
counsels ofboth parents. On a larger scale the same
seriousness of respect of adult sons for their mothers
m a y be noted even by casual travelers in states in
which w o m e n vote on all subjects. Something of
this greater unity of interest between mothers and
their adult sons and daughters in the performance of
a c o m m o n duty of the highest importance, m a y rea
sonably be expected in humbler walks oflife with the
extension of the ballot to w o m e n in the great indus
trial states. At present, this form of c o m m o n inter
est exists a m o n g the members of a family of w o r k
ing-people chiefly where the wife has, before m a r
riage, been a wage-earner and member of a trade
union, and after marriage continues her interest as
an active member of the Union Label League or the
Women's Trade Union League. It would surely be
198

RIGHT

OF

W O M E N

TO

BALLOT

more wholesome for the family and the Republic, to
extend the c o m m o n interest of mother and adult
sons and daughters to the affairs of the whole c o m
monwealth, than to leave it confined exclusively to
the industrial affairs of life.
It is n o w more than twenty years since the writer
printed in the International Review a paper on “ T h e
L a w and the Child” in which itwas pointed out that
the two agencies which had chiefly modified the life
of the children of the working class during the nine
teenth century were the development of steam -driven
machinery, which had made the labor of children
available on a large scale in manufacture, and the
emergence of w o m e n from the exclusively domestic
life of former centuries to a participation, first in
the education, and later in the philanthropic and
educational work of modern times. During the in
tervening years since the publication of that paper
the task of obtaining or promoting legislation on be
half of workingwomen, girls and children, or of
securing its enforcement, has never ceased to be one
of the deepest interest. The progress achieved,
however, is so slight, the obstacles in the w a y of any
real protection for young children are still so great,
in all the industrial states, that it has become the
settled conviction of the writer that, until w o m e n are
universallyadmitted tothe franchise, directmeasures
involve almost certain illusion and disappointment.
This conviction is confirmed, not merely by the af
firmative experience of Colorado, butbythe negative
experience connected with the effort to establish by
statute the right to leisure of w o m e n and children in
199

S O M E

ETHICAL

GAINS

Illinois, where w o m e n vote only for the trustees of
the state university. It is still farther confirmed by
the overwhelming disparity between the advantages
gained for themselves by workingmen w h o are vot
ers, compared with the excessive difficulty involved
in makinganygain whatever, duringthe same period
of twenty-years, on behalf of workingwomen and
children.
For years the friends of the young clerks in retail
stores have striven to obtain for them the poor priv
ilege of being seated when at work, and with what
success? In m a n y states, laws have been enacted
making diverse provisions for seats in stores. In
N e w York City, for instance, the law has required,
since 1896, that one seat be provided for every three
clerks. In some stores the seats have been supplied
for the third floor, because the clerks were chiefly
employed upon the first. In m a n y stores chairs are
abundantly supplied in the fitting-rooms of the cloak,
tailoring and dressmaking departments, for the use
of customers, and are included in thegeneral reckon
ing according to which there are, on the premises,
chairs in the proportion of one to three clerks. In
still other cases, chairs or seats are wholly absent
from the notion counters and from the counters or
tables in the aisles of the stores where half-grown
girls serve as sales-clerks.

The absence of the seats

is suavely explained by the fact that the employees
are there only temporarily. But their employment
lasts day after day, and the pretext is utterly trans
parent. In still other places, seats are provided os
tentatiously, but girls w h o use them are censured or
200

RIGHT

OF

W O M E N

TO

BALLOT

dismissed.

All these variations ofthe artof evading
the statute havebeen foundby the writer in reputable
establishments in N e w York City.
It has been shown in another chapter that the
power of the Retail Dealers' Association is such as
to prevent the appointment of special mercantile in
spectors as provided forby themercantileemployees'
law.

That classic example illumines the whole s u b
ject. On one side are wealth, the prestige of the
large employers, and the effective control of the en
forcement or non -enforcement of laws;—for the
employers notonly vote, but exercise power as large
potential contributors to campaign funds. On the
other side are youth, ignorance, inexperience, p o v
erty, and that irresponsibility which arises from the
hope of marriage and resultant escape from the in
conveniences, great and small, which attend any
given occupation. I t m a y be said that the m e n w h o
are clerks represent the interests of the w o m e n and
girls and should be able to secure inspection o f m e r
cantile institutions and stores. But they are increas
inglyhampered by the pressure of competition of the
very w o m e n and girls w h o m they are thus asked to
protect. They have their hands more than full with
theirown difficulties, and cannot reasonably be asked
by the community to fight the battles of their arbi
trarily disfranchised female competitors. Nor do
competing workingmen by any means always recog
nize an identity of interest with the w o m e n beside
w h o m they work. It is only very recently that they
have gone so far as to welcome them to the trade
unions.
201

S O M E

ETHICAL

GAINS

The slow and ineffectual steps towards the estab
lishment of an adequate force for mercantile inspec
tion, in a state in which the principle of state inspec
tion is so long established and clearly recognized as
in N e w York, are obviously due to the absence of a
voting constituency behind the demand for such in
spection.
Because, in all great industrial states, w o m e n are
disfranchised, except for certain strictly limited
powers in connection with educational affairs, the
industrial disadvantages of the minor wage-earners
are aggravated by this powerlessness of the adult
workingwomen to make the needs of the whole class
felt, by those methods which are slowly and grad
ually but surély improving the position of working
m e n ; and areno lessaggravated by the equal political
impotence of those other w o m e n w h o are the natural
friends and protectors of the young workers,—the
w o m e n of wealth, leisure, intelligence, and philan
thropic interest.
It has been made sufficiently clear in the foregoing
chapters that the exertions of the Retail Clerks' P r o
tective Association, the Working Women's Societies,
the Consumers' League, and Church Association for
Improving the Condition of Labor, and the League
of W o m e n Workers have availed little for changing
industrial conditions affecting workingwomen and
children compared with what voting workingmen
havebeen able to do for themselves.
The burden of the tale of this book is the difficulty
of enforcing legislation on behalf of children and
minor workers.

Their position is zero minus.
202

The

1

RIGHT

OF

W O M E N

TO

BALLOT

element which, under normal conditions, is primarily
concerned with their interests consists of the adult
wage-earning w o m e n , the mothers and the teachers,
with philanthropic w o m e n of education and leisure.
Solongas these either shirk the duty of securing and
using the opportunity to vote, or are debarred from
doing so, the difficulty of enforcement of protective
laws must continue.
The exceptional disadvantage attaching to the po
sition of minor working girls is such as to call for
humane exertion on the part of all w h o can in any
w a y contribute to their welfare. A n d the response
is found in the rapidly growing series of philan
thropic undertakings of which working girls are the
objects. While the Y o u n g Men's Christian A s s o
ciations aim to enhance the efficiency of their bene
ficiaries, by furnishing instruction and facilities for
systematic exercise, bathing and wholesome recre
ation, the corresponding organization dealing with
minor working-girls provides, not only these aids to
efficiency, but a variety of sustaining and curative
measures in addition.

W h a t is the meaning of the
homes for convalescent working-girls which are
springing up in so m a n y directions? Is it not that
working-girls are being worn out and used up at a
rate such that no savings of their o w n brief working
period could possibly provide for their needs? A n d
these homes are without exception overcrowded (or
burdened with waiting-lists) largely by sufferers
from nervous prostration or pelvic disorders induced
by long hours of work and needless standing arbi
trarily imposed in connection with their work.
203

S O M E

ETHICAL

GAINS

Boarding houses for working girls, furnishingboard
at fourand five dollarsa week and supplyingamodi
c u m of comforts paid for by philanthropic subscrib
ers, exist in a score of states. W h y a l l this provision
for which nothing corresponding is asked on behalf
of young m e n ?

Is it not due to the general feeling

that the morals of working-girls must be buttressed,
their wages eked out in the interest of society itself:
Rescue homes and shelters tell their o w n chapter of
the story of insufficient pay coupled with overwork
and temptation; and this chapter is supplemented by
the rapid growth of foundling asylums, and c o m
mittees for finding places in friendly families for
mothers with one infant each.
It m a y b e m a n y yearsbeforeanyoftheeffortsnow
m a d e on behalf of working-girls can be safely re
laxed. But w h y should all this effort be confined,
in their case more than in that of young workingmen
and

boys, to the forms of philanthropy? W h y
should not effort on their behalf go forward on two
feet, the philanthropic and the political together, as
the movement of workingmen goes forward ? W h y
should it limp haltingly along upon the one foot of
philanthropy? Is itnot quite possible that, with the
extension of political power to all the w o m e n in the
community, such improvement in the conditions of
employment must resultthat theminor wage-earners
will be more nearly self-supporting, less often placed
in the humiliatingposition of workingand yet being
objects of charity? For any body of wage-earners
to be disfranchised is to be placed at an intolerable
disadvantage in all matters of legislation.
204

RIGHT

OF

W O M E N

TO

BALLOT

It has been shown that in states in which w o m e n
have been admitted tothe electorate, certain substan
tial advantages have accrued to the schools and the
children. It is entirely reasonable to infer that with
a farther extension of the franchise to w o m e n , a
similar gradual improvement in the lot of the minor
wage-earners will come about, and that these im
provements cannot be achieved so promptly or so
lastingly in any otherway.
While leisure has been increasing in the class of
prosperous, home-keeping w o m e n , the need of their
help, sympathy and protection has been growing
a m o n g the young workers. Since the leisure of
prosperous w o m e n is due largely to the labor of
young wage-workers ( w h o are engaged chiefly in
the food and garment trades, the textile industries
and that retail commerce which lives by the patron
age of home-keeping women ), it behooves the for
tunate to assume their full share ofthe duty o f m a k
ing and enforcing laws for the protection of these
young wage-workers.

But this they can do only

when they perform all the duties of citizenship, vot
ing and serving on public boards and commissions
when elected or appointed to them . It is because
w o m e n are less under the stress of competitive busi
ness, because they do, in fact, represent children and
youth, that their vote is needed.
O n e alleged form of philanthropic work in behalf
of working girls would certainly go out of existence
if w o m e n were added to the electorate, namely those
so-called reformatory institutions under sectarian
management in which for years at a stretch girls are
205

S O M E

ETHICAL

GAINS

detained without trial, kept at work for the benefit of
the institution or of the ecclesiastical organization
under whose auspices it is conducted. Only the
members of a disfranchised class can be subjected
to treatment such as this.
Right of W o m e n to a Share in the Enactment
of Marriage and Divorce L a w s . - A subject of the
highest ethical importance is kept effectively under
discussion by the unwearied efforts of the Divorce
Reform League to obtain the enactment by Congress
of a uniform law dealing with marriage and divorce
throughout the Republic. No other law touches in
the same manner the welfare of every m a n , w o m a n
and child in the nation, as the law governingmar
riage and divorce. No other law, therefore, so per
emptorily requires the assent of every citizen. M e n
and w o m e n are alike affected by the legal basis of
family life; and since the points of view from which
the subject is approached by m e n and w o m e n are
fundamentally different, that law alone can be an
essentially just and righteous one which isso framed
as to satisfy the needs of both m e n and w o m e n and
to rest upon their agreement.
For a federal law, at the present time, there is no
machinery by which the assent of w o m e n can be
obtained. Such a law, therefore, if enacted while
the present suffrage restrictions remain, must be the
product of the will of far less than half of the adults
w h o m it would affect. However wise the measure
recommended might appear in the abstract to be, the
manner of its adoption would constitute an intoler
able injustice.
206

RIGHT

OF

W O M E N

TO

BALLOT

It is sometimes urged by the advocates ofthe con
gressional measure that the method of securing the
adoption of legislation by the action of the separate
states is injuriously slow; that evils attending the
present variety of legislation are such that haste is
required. To this it m a y , however, be replied that
the machinery of legislation in the states responds
more quickly and sensitively to the will of the people
than does the machinery of federal legislation. If,
therefore, the people of the various states are slow to
alter their laws governing marriage and divorce,
this m a y arise from the fact that the existing laws
are more or less adapted to the life of the people in
the states. If they are not so adapted, the first pre
liminary change should logically be the extension of
the electorate to include the non-voting elements of
the population n o w silently affected by the laws.
That being done, a just basis would have been
formed upon which to proceed with farther changes
in legislation in the individual states. If it be true
thatthe evils arisingfromtheexistingchaos of legis
lation affecting marriage and divorce in the different
states have become, or are becoming intolerable,
surely it is fair to infer that these evils m a y be due
to the enforced silence in matters of legislation of
half the people affected by them .
The need of haste is a strange reason to assign for
the transfer of the power to legislate upon the most
intimate relation of h u m a n life, from those govern
ments which are most easily controlled by the people
affected, to that which is farthest removed from
them .
207

S O M E

ETHICAL

GAINS

Four states are n o w in a position to deal with this
or any other question on a basis of entire justice,
namely those states in which m e n and w o m e n alike
vote; m a n y other states possess all the needed ma
chinery for submitting important measures to the
vote of the people; and it is perfectly easy to pro
vide, in any given case, that w o m e n m a y vote on
the question submitted. There is obviously more
need for such submission in the case of a bill dealing
with marriage and divorce than in the case of any
other subject. Not until the responsibility for the
change can be shared by the whole adult population
should sograve a change be undertaken as the trans
fer of the power of legislation upon this most vital
of all subjects from the states to the federal govern
ment.

208

C H A P T E R VI

T H E R I G H T S OF P U R C H A S E R S
In any given community every person is directly
or indirectly a purchaser. F r o m birth to death
choice is made for us or we ourselves choose ob
jects of purchase daily, even hourly. As we do so,
we help to decide, however unconsciously, h o w our
fellow m e n shall spend their time in making what
we buy. F e w persons can give m u c h in charity;
giving a tithe is, perhaps, beyond the usual custom .
But whatever our gifts m a y be, they are less de
cisive for the weal or woe of our fellow beings than
are our habitual expenditures. For a m a n is largely
what his work makes him - an artist, an artisan, a
handicraftsman, a drudge, a sweater's victim or,
scarcely less to be pitied, a sweater. All these and
m a n y more classes of workers exist to supply the
demand that is incarnate in their friends and fellow
citizens, acting as the purchasing public. All of
us, all the time, are deciding what industries shall
survive, and under what conditions.
Obviously the purchaser ultimately decides all
production, since any article must cease to be p r o
duced if consumers cease to purchase it. The
horsehair furniture of the early part of the nine
teenth century has n o w virtually ceased to b e m a n u
14
209

S O M E
factured.

ETHICAL

GAINS

On the other hand, any article, however

injurious to h u m a n life and health the conditions of
its production m a y be, or with whatsoever risk they
m a y be attended, continues to be placed on t h e m a r
ket so long as there is an effective demand for it;
e. g., nitro-glycerine, phosphorous matches, and
mine products of all kinds.
This great purchasing public, embracing the
whole people, which ultimately decides everything,
does so, on the whole, blindly, and in a manner in
jurious to itself, and particularly to that portion of
itself which is engaged in production and distribu
tion.
It would seem an obvious right of the purchaser
that the food which he buys at the price asked
should be pure and clean; that the garment p u r
chased of an entirely reputable dealer should be free
from poisonous dyes, vermin, and the germs of dis
ease ; and that both food and garments should leave
his conscience free from participation in the employ
ment of young children or of sweaters' victims.
Yet these seemingly obvious rights were, perhaps,
never farther from attainment than to-day, in the
opening years of the twentieth century. · Adultera
tion of foods has never, in the historyof the h u m a n
race, been carried on upon a scale so vastas at pres
ent. The sweating system with its inevitable ac
companiment of filth and disease conveyed in the
product, persists and increases in spite of sixty years
of effort of the philanthropists and the needle
workers to check it.
The oldest recognized legal right of the purchaser
210

THE

RIGHTS

OF

P U R C H A S E R S

is to have his goods as they are represented.

To

sell goods under false pretenses has long been an
offense punishable with more or less severity. But
of late this right, if it was ever widely enforceable,
has become largely illusory. In the vast complica
tions of modern production and distribution, condi
tions have arisen such that the individual purchaser
at the m o m e n t of buying, cannot possibly ascertain
for himself whether the representation of the seller
is accurate or not. The rule caveat emptor fails
when the purchaser is prevented by the nature
the case from exercising enlightened care. Thus
the case of adulterated foods, or of foods exposed
filth or disease in the course of preparation, and

of
in
to
in

the case of garments sewed in tenements, the p u r
chaser is at the mercy of the producer and the dis
tributer, and is debarred from exercising care in
these respects at the m o m e n t of purchasing.
Not only m a y a department store advertise with
impunity in a dozen daily newspapers that “ all our
goods are made inour o w n factory,” when itneither
owns nor controls a factory, but the sales-clerks m a y
safely reiterate the assurance over the counter in
regard toan individual garment which, in truth, was
finished in a tenement house by a bedridden c o n
sumptive. The machinery for identification is so
imperfect, the difficulties in the w a y of tracing a
garment are so m a n y and so subtle, that the law has
no more terrors for a mendacious sales-clerk than
for the reckless advertising agent, or for the busi
ness office of those daily papers which thrive upon
the wholesale mendacity of retail commerce.
211

S O M E

ETHICAL

GAINS

Yet the demand for opportunity to obtain g a r
ments and food which m a y be purchased with a
clear conscience grows imperative, has become, in
deed, an ardent and abiding desire of enlightened
purchasers w h o long for some trustworthy assur
ance that they are free from participation in the
employment of children, in starvation wages and in
the continuance of the sweating system. Granted
that this n e w aspiration m a y be far from general,
far from achieving its o w n gratificationon any large
scale, the mere fact that it is present in the minds
of thousands of purchasers involves a n e w ethical
standard on their part and must, in the course of
time, bring fundamental changes throughout wide
reaches of production and distribution.
The relation of this aspiration to certain legisla
tion forms the subject of this and the ensuing chap
ter.
Ignorance of Conditions of Production.The
most serious obstacle to the realizing of this aspi
ration is the willing ignorance of the masses, p a r
ticularly of the masses of w o m e n w h o constitute the
direct purchasers of the largest portion of the arti
cles used for personal consumption. Even the p r o
ducers, themselves, suffer so keenly from the lack of
intelligence of their customers, that they are fitting
out museums for the purpose of educating t h e m ,
the Commercial M u s e u m of Philadelphia being a
promising type of such undertakings.
Recognizing no duty in this matter, asserting no
right, the unintelligent purchasers tempt the greed
of producers and distributers. Devoid of enlight
212

THE

RIGHTS

OF

P U R C H A S E R S

ened imagination, these purchasers exert no stimu
lus favorable to the honest manufacturer.
Because the germs of the deadliest diseases are
not discernible by the eye, because they have no
conspicuous and offensive smell, a shopping public
devoid of imagination remains easily unaware of
their presence on the counters of reputable m e r
chants. In the same way, ices and syrups colored
in tints and shades u n k n o w n to the fruits and
flowers of nature, arouse no imaginative wonder.
Peas of brilliant green in January, corn taken as
yellow from the can in March as from the ear in
July, these impossible objects are credulously ac
cepted by the buying multitude. W h y ? Because it
prefers not to k n o w the truth.
Because the purchasing public, on the whole, pre
fers at present not to k n o w the facts, we are all in
danger of eating aniline dyes in tomatoes, jams,
jellies, candies, ices, fruit syrups, flavoring and col
oring extracts; and salicylic acid in our canned peas
and other vegetables which we insist upon having
preserved of midsummer hue at midwinter. We
wear more or less arsenic in our print goods and
the germs of tuberculosis and of countless other
diseases in our outer garments.
A physician w h o visits a m o n g the poorest of the
poor in N e w York City recently found a w o m a n in
the last stages of consumption, making, as she lay
propped a m o n g her pillows, little boxes for wedding
cake, licking the edges to moisten the g u m to make
ithold together. T h e teacher of a class of defective
children in the same city, while visiting the h o m e of
213

S O M E

ETHICAL

GAINS

a lad whose left a r m and righthand had been a m p u
tated by reason of cancerous growths, found the
father suffering from tuberculosis, but making a
trivial addition to the family income by cracking
walnuts (for which he was paid seven cents a pound
if no kernels were broken and three cents a pound
if his work was imperfect). The father complained
that he lost m u c h time in fetching and carrying the
nuts and kernels between the store and his home,
and could crack but fifteen pounds in three days.
T h e individual purchaser would doubtless prefer
to eat nuts cracked in a workroom not frequented
by a father afflicted with tuberculosis and little son
mutilated by the ravages of cancer. The individual
has, however, at present no methodof enforcingthis
reasonable preference.
We

are all m u c h in the position of the Italian im

migrants in any of our great cities. They support at
least one store for the sale of imported maccaroni,
vermicelli, sausage (bologna and other sorts), olive
oil, Chianti wine, and Italian cheese and chestnuts.
These articles are all excessively costly, by reason
of transportation charges and the import duties in
volved; but the Italians are accustomed to using
them and prefer a less quantity of these kinds of
food to a greater abundance of those cheaper and
more accessible supplies by which they are sur
rounded. The pitiful result is that the importer
buys the least quantity of the Italian produce requi
site for the purpose of admixture with American
adulterants. The most flagrant example of this is,
perhaps, the use of Italian olive oil, of which vir
214

T H E

RIGHTS

OF

P U R C H A S E R S

tually none really pure is placed upon the market
for sale at retail. W h a t the Italian immigrant gets
is the familar Italian label, the well-known package
with its contents tasting more or less as it tasted at
h o m e in Italy. W h a t the actual ingredients are he
knows no more than an American knows what he is
eating w h e n he places his so-called butter or honey
upon his so-called wheat-cakes. The demand ofthe
Italians in America for Italian food-products, al
though large, persistent, and maintained at a heavy
sacrifice on the part of the purchasers, is not an
effective demand, because the immigrants have
neither the knowledge nor the organization w h e r e
with to enforce it, while the legislation of the va
rious states affords them virtually no redress.
The privilege of remaining thus unintelligent
costs the shopping public uncounted thousands of
lives and other uncounted thousands of invalids.
But it is a privilege dear to modern crowds. In
deed, the preference for things which come from
afar, whose industrial history cannot be k n o w n to
the purchasers, appears to be almost universal.
Thus the writer has seen in a filthy hovel, in the
grimiest street in Chicago, Sicilian peasant w o m e n
sewing into the waistbands of the cheapest little
knee pants, tags bearing the words N e w York, be
cause the purchasers like the illusion that all g a r
ments sold in the United States are made in N e w
York. The same illusion is cherished as to n u m e r
ous food products— the purchaser will have it that
they came from some other place than their real
source. Figs from California must be labeled
215

S O M E

ETHICAL

GAINS

S m y r n a ; cotton seed oil from South Carolina must
bear French or Italian labels calling it olive oil.
W h y all these queer mendacities ? Because the
purchasing public will have it so! Because the
number is still sadly small of those w h o perceive the
duty to k n o w their sources of supply and assert their
right to k n o w them ; w h o are willingto sacrifice that
deadly privilege of remaining ignorant, which the
careless majority exercise at frightful cost of dis
ease spread a m o n g innocent families, and of p o v
erty, illness and death a m o n g the workers. T h e
willingly ignorant purchaser carries a heavy share
of the guilt of the exploiting manufacturer and the
adulterating distributer.1
S o m e Typical Purchasers.— H o w inadequate is
the individual demand of a single wide-awake c u s
tomer, is well shown by the experience of a con
scientious shopper of the writer's acquaintance.
Deeply moved by an eloquent appeal on behalf of
the sweaters' victims and their sufferings, she de
termined to free her o w n conscience by buying only
goods made in factories and workrooms, never in
h o m e sweat-shops. She began her search for such
goods in the leading department store in which she
had always fitted out her boys for school.

The

1In England, a large body of purchasers has, for more than
one generation, striven to attainan effective knowledge of its
sources of supply, and to organize demand for the express
purpose of influencing the conditions of distribution, namely
thecoöperative societies. In America, however, the coöpera
tive movement (aside from insuranceand buildingand loan
societies) has gained no considerable headway in either pro
duction or distribution. The work of the trade unions in the
direction of affording information and arousing an interest in
the conditions of production will be dealt withlater,
216

THE

RIGHTS

OF

P U R C H A S E R S

sales-clerk assured her that, "All our goods are
made in our o w n factory; we handle no sweat-shop
goods.” Being a canny person and well-instructed,
she asked for a written assurance of that fact
signed by a m e m b e r of the firm , to be sent h o m e
with the goods. They were never sent, although
this was an excellent customer w h o m the firm was
in the habit of obliging if possible. This process
she repeated in several stores and outfitting estab
lishments, until it became clear to her mind that,
alone and unaided, she could never free her indi
vidual conscience. The loneliness of this enlight
ened purchaser is one of the instructive phenomena
of our times. The great, careless, thoughtless
mass of American m e n and w o m e n have performed
the act attributed to the ostrich. Hiding their
minds in the pleasanter oblivion, they have pre
tended that the enemy was not present.
During the long period in which there had not
yet been discovered a practicable method of dealing
with the sweating system, m a n y otherwise intelligent
people deliberately adopted a policy of ignoring
conditions which they saw no w a y of improving.
Thus itwas once the fortune of the writerto address
a club of unusually influential w o m e n , on the c o n
ditions of work in the needle-trades in Chicago, as
they existed during the smallpox epidemic of 1894.
The story was apainful one of a disorganized trade,
pauperism of skilled workers, destruction of h o m e
life in the tenements, incompetence in the Board of
Health, filth, disease and death. The members
listened with visible impatience. In the course of
217

S O M E

ETHICAL

GAINS

the discussion which followed one m e m b e r said:
" This club exists for the purpose of education and
recreation.

Listening to the recital this afternoon

certainly cannot be regarded as recreation. Unless
the speaker can offer a method by which we m a y
participate in some practical effort for the improve
ment of conditions in the needle-trades, our w a y of
spending this afternoon can have no claim to be re
garded as education. For my part, I find it satis
factory to buy garments wherever I find them at
tractive, and then send them to the steam -cleaner."
Manifestly this individualistic solution of the
problem of the needle-trades was insufficient, even
from the point of view of the speaker, for any ordi
nary cleaning of those days would certainly not
have reached the germs of smallpox or of scarlet
fever; and few persons share the willingness of that
speaker to buy goods trusting to the efficacy of
subsequent disinfection. Since, however, there was
at that time no method available which could be
offered to the critic, the writer was left defenseless.
The community has borne both the risk of infec
tion and the guilt of participation in maintaining the
sweating system with sadly complete equanimity,
far more amiably, indeed, than it has endured the
painful process of enlightenment.
A m o n g a l l the cherished forms of ignorance, none
is more tenacious than that of the prosperous pur
chaser able and willing to pay for the best that the
market affords and convinced that, whatever the
sorrows of purchasers of ready-to-wear goods, he
is safe, because he gets his garments only of the
218

T H E

RIGHTS

OF

P U R C H A S E R S

merchant tailor and pays a high price for the as
surance that they are made up under conditions
which guard him against disease, and enable the
merchant tailor to pay the working tailor a fair
price for his labor. But this customer is really no
better off than the well-instructed club w o m a n m a k
ing her ineffectual search for righteously made
ready-to-wear goods for her boys. For example, as
factory inspector of Illinois, the writer was one day
in search of a cigarmaker w h o was said to have
smallpox in his family, during the terrible epidemic
of 1894. Quite by accident a tailor was discovered
newly moved into the suspected house, and not yet
registered with the department or with the local
board of health.

In this tailor's shop, which was

his dwelling, there was a case of smallpox.

In the

same shop there was, also, a very good overcoat,
such as gentlemen were paying from sixty to sev
enty dollars for in that year. In the collar was a
hang-up strap bearing the name of a merchant
tailor in Helena, Montana. N o w , that merchant
tailor had had, in his store w i n d o w in Helena, ex
cellent samples of cloth from which the customer
had ordered his coat. The Helena tailor had taken
the necessary measurements and had telegraphed
them, together with the sample-number of the cloth,
to the wholesale house in Chicago, of which he was
an agent. The wholesaler had had the coat cut and
h a d sent it to the kitchen-tailor in whose sickroom
in an infected house in Chicago it was fortunately
discovered. But for the happy accident of the find
ing of the tailor during a search for an entirely
219

S O M E

ETHICAL

GAINS

different person, the purchaser in Helena, M o n
tana, would surely have bought smallpox germs in
his expensive coat.
Beside this fatuous belief that his custom-work,
because it is costly, is made under clean and w h o l e
some conditions, the purchaser of expensive gar
ments usually comforts his conscience with the as
sumption that the working tailor w h o makes them
receives some substantial share of the high price in
the form of wages. While it is true that the tailors
w h o do custom work have a more stable trade union
than workingmen in the ready-to-wear branches,
and c o m m a n d , therefore, somewhat better pay, it is
also true that the tailor in this case, as in scores of
others during the same epidemic, was driven by ex
treme poverty to conceal the dreadful fact that he
had smallpox in his family, through fear of losing a
few days' or a few weeks' work. So the high price
of the coat did not even entitle the customer in
Helena, Montana, to an easy conscience onthe score
of the wages paid to the people w h o worked upon it.
In the matter of wages, however, there is no
longer an available excuse for ignorance on the
part of the purchaser as to the wages paid for the
manufacture of his garments; and to-day, he w h o
remains ignorant upon this important point does so
by his o w n choice. For the tailors were already, at
that time, offering a label attached to goods made
under conditions of pay and of hours of work satis
factory to both the employer and the worker.
Efforts to Enlighten Purchasers.-Clearly the
first step towards the assertion of the rights of the
220

THE

RIGHTS

OF

P U R C H A S E R S

purchaser is the acquisition of knowledge; and itis
an idiosyncrasy of the present industrial situation
that a large part of the effort exerted for the en
lightenment ofpurchasers has come, not from t h e m
selves, but from manufacturers, physicians and
philanthropists (in the form of restrictions upon the
sale of drugs, or recommendations in favor of mu
nicipally prepared vaccine, anti-toxine, etc.), from
public authorities in the shape of official reports,
from the Consumers' League in its endeavor to
form a large and stable body of organized purchas
ers, and finally and chiefly from the trade unions,
disseminating information in the interest of better
working conditions for themselves.
A m o n g all these agencies, the press and the ad
vertising merchants might be expected to appear.
These have, however, little claim to any educational
quality in their endeavor. Their exertions have
been directed distinctly not toward education.
Rather they have been meant to stimulate, to per
suade, incite, entice, and induce the indifferent to
purchase. M u c h of the current advertising, of
which the patent medicine advertisement m a y be
taken as the type, is aimed directly at the ignorance
of the purchaser.

Nearly all of it is aimed at the

cupidity ofthe public and it, therefore, offers cheap
ness as the one great characteristic. It is immoral
rather thanethical.
Such measures as exist for the inspection and
testing of food products have usually been obtained
either by hygienists and physicians for philanthropic
purposes, or by producers w h o were furthering
221

S O M E

ETHICAL

GAINS

their o w n interests while nominally promoting those
of the purchaser. Such is the requirement that
oleomargarine shall be colored pink when offered
for sale in certain states, nominally for the protec
tion of consumers, w h o m a y not care whether the
substance which they use for frying or for spread
ing on bread is made of the milk of the c o w or the
fat of the steer. The people w h o obtained the en
actment of this law were not the outraged c o n s u m
ers of oleomargarine, demanding to be protected
against it, but the farmers whose butter market was
threatened by the invasion of the oleomargarine.
Similar protection to American purchasers of
foreign food products is afforded by the federal
bureau with its laboratories for the investigation of
imported articles, nominally in the interest of the
public health, but really in the interest of the A m e r i
can producer, whose adulterations are left by the
federal government to the varying efficiency and
honesty of local boards of health, and state chemists,
and food and dairy commissions.
In consequence of these diverse and multifarious
exertions on behalf of the purchasers, there have
grown up regulations of strangelyunequal effective
ness.

Thus in m a n y cities the sale of a small n u m

ber of well-known deadly drugs is hedged about
with precautions intended to prevent murder and
suicide by the ancient method of poisoning. In
some cases, the purchaser of such drugs must be
identified, and must state the purpose for which the
purchase is made. Arsenic and strychnine, having
an old established reputation as possible enemies of
222

THE

RIGHTS

OF

P U R C H A S E R S

h u m a n life, and but slight profit for the retailer in
the quantities in which they are sold to individual
purchasers, are surrounded by precautions; and the
package m a y even have to be conspicuously labeled
with skull and crossbones, so that no careless third
party can unintentionally come to harm.
Meanwhile,the milk sold by the grocer next door
to the druggist m a y be conveying typhoid germs
in every bottle, and his cream m a y be so thickened
with corn-starch and other substances as to starve
any baby depending upon it; or serve as a gradual
poisonto a diabetic patient conscientiously endeav
oring to follow his prescribed diet of fats and to
avoid starch in all its forms. T h e products of the
dairy have an excellent reputation as bases of
wholesome feeding for infants and invalids; the
purchaser is not habitually on guard against them,
as he is forewarned against the corner druggist's
arsenic and strychnia, nor has he any available
means of personal self-defense. The typhoid germ
and the thickening substance added to his cream
and milk he cannot discover for himselfat will. He
must take his chances of protection through the
intelligence and faithfulness of the municipal
officials w h o deal with the milk supply. The c o n
stant appalling death rate of infants w h o depend
upon milk, in all great cities, demonstrates the in
sufficiency of this agency, under present conditions.
Only the intelligent farmer, managing his o w n
dairy, or the coöperative society owning its dairies
and buying its o w n product, can be certain of avoid
ing poisons, quite as dangerous to life and health as
223

S O M E

ETHICAL

GAINS

strychnia and arsenic, with which American society
has not yet learned to deal by any effective s u m m a r y
procedure. The experience of some of the English
cities, and of Rochester, N e w York, seems to indi
cate that the difficulties of the milk supply can be
met only by the institution of municipal milk, analo
gous to the municipal water supply; and municipal
provision of all useful drugs, analogous to the
present municipal supplies of vaccine and anti
toxine serum.
On

the other side from the dairyman, the d r u g

gist's next door neighbor, perhaps, is a tailor, w h o
m a y be actively engaged in poisoning society in yet
a different manner, by the sale of garments made
in places in which there is infectious disease trans
missible in articles exposed to it. In this case, also,
as in the case of the dairyman's milk, the customer
is at the mercy of the community and its officials.
For when he orders a suit, itis out of his power to
sit in the tailor's shop while the garment is cut, and
then follow it whithersoever the merchant tailor
m a y send it, first to a workshop tobe stitched, after
ward to a second place in which the buttonholes
m a y be made, and then to a third place, commonly
a tenement-dwelling, in which the vest and trousers
are felled and otherwise completed before the g a r
ment is sent back to the tailor for the removal of
whatever grease and vermin it m a y have acquired
in its travels. For the tailor, as for the dairyman,
there has never yet been brought to bear any pre
cautionary measure adequately protective for the
customer.
224

T H E

RIGHTS

OF

P U R C H A S E R S

Scarcely more availing than the restrictions upon
strychnia and arsenic in the wilderness of modern
retail trade, are the efforts of the public officials to
protect the purchasing public by the dissemination
of information. The Department of Labor at
Washington, the state bureaus of labor, the state
inspectors of factories, the municipal and state
boards of health, the state chemists and dairy c o m
missions, all publish annually or biennially (some of
them quarterly, monthly, and weekly) information
for the enlightenment of the citizens. But very
little of this information has, hitherto, served the
purpose of the individual purchaser. If I have read
the reports of all these officers, I am not only in as
great danger as before of buying glucose for sugar,
acetic acid for vinegar, and paper in the soles of my
shoes; but I am in as great danger as before of b u y
ing smallpox, measles, scarlet fever, infectious sore
eyes and a dozen forms of disease of the skin in my
n e w garments. For not one ofthese officials p u b
lishes the list of the kitchen-tailors to w h o m the
merchant tailor gives his goods to be made u p ; just
as not one of them can possibly give information
whereby adulterations of foods can be successfully
detected in the private kitchen.
On the other hand, the available official informa
tion already existing has hitherto remained largely
ineffectual. In vain has the fact been printed that
a certain bouillon (so extensively advertised as par
ticularly delicate and suitable for the use of aged
persons and little children) is boiled in such close
proximity to the fertilizer storage of the packing
15

225

S O M E

ETHICAL

GAINS

establishment that the factory inspectors fall ill on
the days of inspection of these premises. T h e
bouillon continues to be served at the luncheons of
the socially aspiring.

Official statements on

all

these matters, safely buried in official reports, do not
reach and influence the great mass of the buyers.
For m a n y generations manufacturers have been
offeringto their patrons the guarantee of the brand,
wherebythe producer stakes his reputation upon the
excellence of the article bearing his name or device.
But the public attaches such slight importance to
this guarantee that, at present, m a n y factories send
out more goods without the brand than with it, not
wishing to shoulder the discredit incident to their
cheapest and most worthless product, which yet
proves the more profitable portion of the total out
put.
The

difficulties of the manufacturers in their

efforts to enlighten purchasers are greatly intensi
fied by the extraordinary incompetence of the
“average”. purchaser to judge articles on their
merits. For certain great modern industries m e n
have devised tests for the product, and warships, lo
comotives, railway bridges, and electrical installa
tions can all be tried and tested before the bills are
paid. But for the bulk of the products intended for
personal use, nothing effective has been designed
corresponding to these tests. Especially is this true
of all those branches of manufacture which were
once carried on by w o m e n in the home, and have
n o w gone out into shops and factories. Concern
ing these products, purchasers must still rely upon
226

THE

RIGHTS

their individual

OF

P U R C H A S E R S

skill as buyers.

The

old rule

caveat emptor is here carried out to its utmost ap
plication.
The most promising step forward in the effort to
educate the purchasing public has been taken w h e n
ever a state has required the manufacturer of an
article of food or medicine to state clearly and
truthfully the ingredients composing each package
offered for sale. This is a direct appeal to the in
telligence of the purchasing public. Such m e a s
ures become effective just in proportion as the p u r
chasers cooperate with the officials w h o are charged
with the duty of testing and analyzing samples
bought in the ordinary course of trade. A c o m
munity in which this coöperation is well sustained
protects the life and health of its citizens, stimu
lates their intelligence in a direction of ever-increas
ing industrial importance, and enforces honesty
upon producers w h o are under the heaviest moral
strain w h e n left unsustained under the pressure of
competition.
The same principle underlies a bill entitled " An
Act for Preventing the Adulteration or Misbrand
ing of Foods or Drugs, and for Regulating Traffic
Therein,” which has twice passed the House of
Representatives only to fail each time of passage by
the Senate. This is the attempted application ofthe
principle that the purchaser is of right entitled to
trustworthy information furnished by the producer
and guaranteed by the ceaseless activity of officials
created for the purpose of examining the products
227

S O M E

ETHICAL

GAINS

and testing the veracity of the labels attached to
them .
By providing for a continuous appeal to the in
telligence of the individual purchaser, and an ever
present warning to the producer to tell the truth as
to his product, this billi promises an important
ethical gain through legislation.
1For the text of this bill see Appendix V.

228

C H A P T E R VII

T H E R I G H T S OF P U R C H A S E R S , A N D T H E
COURTS
The more closely the rights of purchasers are
scrutinized, the more clearly it appears that they
are social rights. However m u c h they m a y present
themselves to the mind as individual, personal
rights, the effort to assert them invariably brings
the experience that they are inextricably interwoven
with the rights of innumerable other people. In the
last analysis they cannot be asserted without the
previous assertion of the claim of the weakest and
most defenseless persons in the community.
It has been suggested in a previous chapter that
the most obvious rights of the purchaser are, to
have his goods as they are represented, and to have
food pure and garments free from poison and in
fection when bought of reputable dealers at the
price asked; and, finally and most important, to be
free from participating indirectly, through the p u r
chase of his goods, in the employment of children
and of the victims of the sweating system.
Before, however, these fundamental rights of any
purchaser can be established as a matter of course,
it occurs incidentally that the lives of infants must
be safe from the poison of unclean milk and adul
229

S O M E

ETHICAL

GAINS

terated foods, and the consciences of thewage-earn
ers cleansed of the degradation implied in prepar
ing impure foods for the market. In the process,
honesty must be forced upon the poisoners ( b y
means of adulterations in food and germs in ap
parel) w h o n o w thrive upon the ignorance and
credulity of the buying public.
Before the individual purchaser can vindicate his
o w n personal rights, the whole body of purchasers
are constrained to save childhood for the children,
and h o m e life for the workers w h o dwell in tene
ments. T h e garret of the humblest widow must be
safe from invasion by the materials and the proces
ses of industry. The childhood of the dullest or
phan must be secure from the burden of toil. On
no easier terms can the conscience of the citizen as
purchaser be freed from participation in the m e a n
est forms of cruelty, the sacrifice of the weak and
the defenseless to the search for cheapness.
These ends can be accomplished, however, only
by comprehensive statutes sustained by decisions of
the highest courts, and enforced by endless effort of
the purchasers and the wage-earners defending their
interests together. Under the pressure of competi
tion, the highest ethical level possible to our social
life can be reached only through legislation in this,
its highest and finest sense.
T h e N e w Y o r k Decision of 1884; (In re
Jacobs).— These truths find an illustration in the
history of a disastrously unsuccessful effort of the
cigarmakers to protect by statute their o w n ex
clusive interests, through the enactment of a m e a s
230

P U R C H A S E R S

AND

COURTS

ure prohibiting the manufacture of cigars and the
manipulation of tobacco in tenement houses in the
state of N e w York. In 1884, when this effort was
made, tenement-manufacture was of relatively
slight extent compared with its subsequent develop
ment, and was confined almost exclusively to the
materials mentioned. T h e sweating system , as we
k n o w it, was then in its earliest infancy, and the
manufacture of garments and other articles under it
was so slight as not even to suggest to the cigar
makers the inclusion of the needle-trade workers in
the struggle for the statutory prohibition of work
in the tenements.
W h e n the law prohibiting the manufacture of
cigars and the manipulation of tobacco in the tene
ments had been in force less than a year it was pru
nounced unconstitutional by the Court of Appeals,
in the decision of the case of in re Jacobs.1
H a d that earliest statute been sustained by the
Court of Appeals of N e w York it is safe to assert
that the odious system of tenement manufacture
would long ago have perished in every trade in
every city in the Republic.
Because it was undeniably class legislation, ap
plying only to those tenement-dwellers w h o were
employed in producing the commodities including
in some form tobacco as an ingredient, and omitting
all others, it is impossible to defend the statute.
But the deplorable results of the decision of the
Court of Appeals, which its defective form called
forth, are of such far-reaching ethical, industrial
1See Appendix IV.
231

S O M E

ETHICAL

GAINS

and social character as to deserve careful consider
ation.
The framers of the law described it in its title
as " An Act to Improve the Public Health,” by pro
hibiting certain narrow lines of manufacture in the
tenements. But the court held that its title did not
properly describe it,—that it was not, in fact, a
measure calculated to improve the public health.
On this last pointthe court was clearly in error as
to the facts. The proof of the pudding is in the
eating; and, since the annulment of the prohibition,
tenement-house manufacture has developed enor
mously, has produced disease unceasingly by over
crowding not merely individual tenements, but
whole districts of every city in which ithas existed,
and has distributed disease in the communities into
which the manufactured goods have carried germs
emanating from infected tenements.
Physicians, nurses, inspectors of numerous kinds,
friendly visitors of divers charities, residents of set
tlements in districts in which the sweated industries
are carried on, all testify to the impossibility of pre
venting the spread of disease in the general public
where this system of manufacture continues. In
1885, however, this was not yet 'the case. The
germ theory was not yet so thoroughly a part of the
public consciousness as it has since become.

Nor

wasthepresentbody of evidence as to the close c o n
nection of the diseases of the tenement-dwellers
with epidemics in remote parts of the country,
whose inhabitants wear tenement-made garments,
then available.
232

P U R C H A S E R S

AND

COURTS

A startling proposition contained in the decision
in re Jacobs is that the health of the employees is
not the public health! “ W h a t possible relation can
cigarmaking in any building have to the health of
the general public?" asked the Court of Appeals of
N e w York in 1885.
It is not long since a visiting nurse a m o n g the
tenements of N e w York City found a dying con
sumptive licking the tips of cigarettes which he
was manufacturing. This is but one of thousands
of observations which have been made and recorded
since the decision in re Jacobs embodied that cyni
cal question. During the intervening twenty years
the fact has been imprinted upon the public mind
that the whole system of manufacture in the tene
ments does involve a degree of danger to the public
health such that itis no longer to be tolerated; that
this danger is not confined to the employees in the
tenements themselves, but that it is shared by them
with the whole purchasing public.
It is not n o w needful to prove that the health of
the workers is an importantpartof the health of the
public. Every epidemic during the years since
1885 has proved that the disease of the workers in
the tenements becomes, with certainty and precision,
the disease of the public, transmitted in the textures
of the goods worked upon in the sickrooms of the
invalids of the tenements.
A

comparison of the text of this N e w

York

decision of 1885 with the decisions of the Supreme
Court of the United States in the cases of Holden
vs. Hardy in 1898, and of Lochner vs. N e w York in
233

S O M E

ETHICAL

GAINS

1905, shows the vast transition which has taken
place in the space of twenty years in the judicial
view of the public health.
Says the court in the decision in re Jacobs: " To
justify this law, it would not be sufficient that the
use of tobacco m a y be injurious to some persons, or
that its manipulation m a y be injurious to those w h o
are engaged in its preparation and manufacture;
but it would have to be injurious to the public
health.”
In the later cases, cited in previous chapters, it
has been shown that the whole contention of the
United States Supreme Court is that the industry
must be injurious to the persons engaged in it, in
order that their freedom of contract in relation to it
m a y be restricted by statute.
Because it was class legislation, by reason of c o n
fining its prohibition to workers in tobacco, and be
cause it was not, in the opinion of the Court of Ap
peals, sufficiently obviously a measure for the im
provement of the public health, the court pro
nounced the law prohibiting the manufacture of
tobacco in tenements unconstitutional and void, al
leging that it deprived the cigarmakers of "some
portion of their personal liberty."
But, in sustaining his "right to live in his o w n
house, or to work at any lawful trade therein,”
right of which the tenement-dwellers had labori
ously striven to be rid, in order to gain instead
thereof the opportunity of working in factories and
workshops furnished by the manufacturer,--the
court, in fact, established the "right" of m a n u f a c
234

F U R C H A S E R S

AND

COURTS

turers to turn the kitchens and bedrooms of the
poorest of the poor into workrooms and storage
places, a " right" of which the most ample use has
for twenty years been made by the manufacturers.
While thus inadvertently defending the undesired
"right" of the tenement-dwellers to suffer the inva
sion of manufacture into the innermost recesses of
the family life, the court inadvertently deprived the
purchasing public of the power of tracing the
processes of manufacture which are carried on, in
name at least, for its sake. It thus deprived the
purchaser, in effect, of the power to exercise the
right to knowledge of his sources of supply.
Moreover, by the decision, the right of the w o r k
ingman w h o lives in a tenement house to enjoy his
home, using it for the purposes for which a home is
established and free from the intrusion of his daily
bread-winning employment, was inferentially shown
to be, like his right to leisure, one which must be
achieved by the method of trade organization.
T h e Development and Regulation of the
Sweating System .— This inference the t e n e m e n t
house workers drew without loss of time. They
abandoned all effort to secure sweepingprohibitions,
and have since that time striven to deal with their
problem by the twofold method of regulation by
statute and regulation by public opinion. Sweeping
prohibition being unattainable, the next step was
towards partial prohibition. W o r k upon certain
specified articles in kitchens and bedrooms was pro
hibited to all persons not members of the family.
Although a m a n could not be shielded from the in
235

S O M E

ETHICAL

GAINS

vasion of his dwelling by the materials of his indus
try, he could at least be spared the presence of
strange m e n and w o m e n . An immediate conse
quence of this was the establishment of workshops
in the rear of the tenements, sometimes with steam
power, sometimes with foot power; but always with
the custon of sending the handwork into the dwell
ings. The list of articles thus kept sacred to the
family, short at first, grew from year to year, and
n o w includes thirty -four items. Baking bread and
cakes, cracking

nuts

for

candy

manufacturers,

candying fruit for sale to school children, stringing
beads for passementeries, pickling cucumbers, and
drying maccaroni are a few of the items not yet
embraced in the list.
By adopting these partial prohibitions, while de
nying to the purchasers and the workers the protec
tion of a complete prohibition of all manufacture in
the tenements, the state has instilled into the minds
of its industrially weaker citizens a sense of c o n
fusion mixed with contempt for the law. For,
where a sweeping prohibition would have been log
ical and relatively easy to enforce, the petty, teasing
restrictions enacted piecemeal have been fruitful of
the spirit of evasion. W h e n it was a misdemeanor
for a man's sister to sew a cloak in his dwelling,
but perfectly legal for his wife to sew it, while his
sister could legally sew an apron or a skirt for the
same employer, the one impression conveyed to the
mind of the newly arrived immigrant was that this
law was not intended to be obeyed. A n d it never
has been obeyed; nor is there any prospect, even in
236

P U R C H A S E R S

A N D

COURTS

its present amended form , that it willbe uniformly
obeyed. For it is clearly non-enforceable.
In the vain effort to enforce partial restrictions
which are in the nature of the case non-enforceable,
a provision was enacted in 1899 requiring a license
from the factory inspector for every person or
group of persons w h o worked at any process of
manufacture of some thirty articles, in any tene
ment house or in a building in the rear of one.
After this provision had been in force for five years
the writer one day, in 1904, observed a w o m a n
walking along Mulberry street, N e w York, carrying
a huge bundle of knee pants on her head. T h e
burden bearer mounted to the fifth floor of an
Italian tenement and threw her bundle d o w n upon a
singularly greasy kitchen table. Asked to s h o w her
license to work, she brought out, with the friendly
smile and courteous manner of the Sicilian peasant
w o m a n , a letter from the N e w York State Depart
ment of Labor, dated some seven weeks before,
notifying her that her premises w e r e unfit for
licensing, and that no more work must be done in
them until they had been thoroughly cleansed, re
inspected and licensed! The cheerful needle-wom
an, unable to read in any language, but reassured
by the seal of the state of N e w York on the en
velope, had assumed that this was the license for
which she had been told to apply, and had worked
a w a y happy in the consciousness of having obeyed
the law.
The only gain to any part of the community de
rived from the licensing law during the five years in
237

S O M E

ETHICAL

GAINS

which it retained its original form , was the discov
ery of the places in which manufacture was carried
on. More than thirty thousand licenses were issued,
and the ugly fact was brought to light that there
were more licensed groups of tenement-workers in
the four most undesirablestreets of N e w York City,
Mott, Mulberry, Elizabeth and Chrystie streets,
than in any other streets.
Since the promulgation of the decision in re
Jacobs, in 1885, the state and the trade unions have
alikebeen burdened with the despairing duty of per
forming the impossible.

It is utterly impossible to

keep the system of manufacture in the tenements,
and to avoid its evil consequences.
Tenement work means the underpaid husband
letting his wife earn the rent with her needle, in
stead of insisting, as itisclearly hisduty to do, upon
wages enough to maintain his family. It means
boys and girls of ten years kept at h o m e from
school, in violation ofthe compulsory education law,
to do the housework and take care of the younger
children while the mother sews for the market.
Tenement work means the use of foot power in
competition with steam power, a ruinous strain upon
the health of every m a n , w o m a n and child subjected
to it. Tenement work means an endless working
day in the tenement at the foot power machine in
the "rush" season, followed by the shutting d o w n of
the factory for want of orders.
Tenement work means steady d o w n w a r d pressure
upon the wages of the factory workers, to w h o m it
can always be said: “If you do not like our terms
238

P U R C H A S E R S

A N D

COURTS

in the factory, we can send the work into the
homes.” Tenement work means the unavoidable
spreading of disease and the frequent breaking out
ofepidemics, not only in the cities whereit is carried
on, but in all those distant places to which the
product m a y be sent.
In the effort to minimize the inevitable conse
quences of homework, the state has subjected the
dwellers in the tenements to threefold inspection, in
addition to the oversight of the federal government,
whose tax collectors were already charged with the
duty of following them up for the purpose of gath
ering the tax upon tobacco.
Because the personal liberty of a workingman
would be interfered with, if his employer were pro
hibited from requiring him to work at home, the
unhappy dwellers in the tenements have seen their
homes invaded by all manner of materials, from to
bacco leaves and stems, to the bales of paper and
tubs of paste required for making paper bags, and
by three sets of inspectors,—of the Board of Health,
of the Tenement House Department, and of the
Bureau of Factory Inspection.
Moreover, in the alleged interest of their " p e r
sonal liberty" these victims of the sweating m a n u
facturers

have

been

constrained to live within

walking distance of their employer's place of busi
ness, for the burden-bearer between the merchant
tailor and his home-worker is usually a w o m a n or a
child, reduced by the smallness of the pay to saving
car-fare by living near the “ shop.” Instead of able
bodied m e n and girls of the family, walking empty
239

S O M E

ETHICAL

GAINS

handed to and from their work, or riding perhaps
to a desirable suburb by trolley, the burden-bearing
w o m a n or child has determined the distance to be
traversed.

Thus the tenement house problem has
been artificially intensified and complicated; and by
reason of theunlimited competition of the w o m e n of
the tenements, wages have beenkept at such a level
that neither time nor car-fare can be spared by an
adult for fetching and carrying. Hence some child
is sacrificed by being kept from school to serve as
beast of burden, whenever the goods are suchas can
safely be trusted to a child.
Moreover, all this sacrifice of the family leaves
the task of the officials a hopeless one. No Board
of Health has ever succeeded in knowing, every day
in the year, where all the goods are concealed in the
tenements, nor where all the children are w h o m a y
be coming d o w n with diphtheria, or shedding rags
and patches of their skin after light cases of scarlet
fever.
Trade Unions and the U n i o n Label.— The de
cision of the Court of Appeals in re Jacobs

vir

tually turned over to the wage-earners the task of
providing, through the machinery of their organiza
tions, for the protection of themselves and the pur
chasers against the evils of the sweating system.
For twenty years the unions have faithfully striven
to perform a task which it was, from the beginning,
impossible that they should achieve. Just as they
long before introduced child-labor legislation and
factory inspection, which have come to be recog
nized as benefactions to the whole people; so they
240

P U R C H A S E R S

A N D

COURTS

n o w invented that method of dealing with the
sweated trades, by offering the label as a guaranty
of conditions approved by the workers which is ac
cepted as the best available under thecircumstances,
and in view of the conditions imposed by the deci
sion of the Court of Appeals in re Jacobs. It is,
of course, outof their power ever to do, with pallia
tives, what a sweeping prohibition could have done
longsince.
The public, however, cannot afford to allow the
courts to relegate to the labor organizations the
duty of protecting the public health against the
reckless willingness of manufacturers to take risks.
For, if the union is not strong enough to dominate
the trade (and no union of garment workers has
ever been strong enough to do this), the public
must take the consequences in disease and death
sent out from the tenement sewing rooms. O r , if
a union were not only insufficiently strong but im
perfectly honest as well, the public would pay the
penalty for every label dishonestly sold to contract
ors for use in places which fell below the accepted
standard of wholesome and clean conditions.
O r , let us suppose that a portion of the public
m a y be honestly opposed on principle to the m a i n
tenance of trade unions; and unwilling, therefore,
to purchase goods guaranteed by the union label.
Such abstainers, if left without other means of dis
crimination in favor of goods made under whole
some conditions, are in danger, not only of incur
ring disease and death, but of disseminating them
throughout the community.
16
241

S O M E

ETHICAL

GAINS

Finally, a large part of the membership of the
unions in the garment trades consists of i m m i
grants so recently arrived from Eastern Europe as
to have no adequate standards of wholesome condi
tions for home and workshop, of persons wholly un
prepared to defend their o w n health, m u c h more
that of the general public. Clearly the unions,
however valuable to their members and to the c o m
munity in other relations, cannot, in the nature of
things, be a sufficient guardian of the health and
safety of all the purchasing public.
While, however, the unions have not achieved
the impossible, and have not succeeded in perform
ing a task of protection of the public health which
should never have been asked of any voluntary or
ganization, they have been vastly strengthened by
the effort to do this. Baffied in the endeavor to do
a w a y with tenement work by law, they turned to the
development of their label, advertising it, obtaining
legal guarantees against infringement, and publish
ing all the abhorrent facts connected with the sweat
ing system and attached, inferentially, to the goods
which bore no label. Their label, whether or not
it has always guaranteed satisfactorycleanlinessand
the absence of disease from the workroom , has an
nounced to the world that the conditions as to hours
and wages (the organization of employees being
understood, of course), in the factories in which it
was used, were satisfactory to the workers in those
factories. This recommendation has gradually
come to possess a value such that in some indus
tries the manufacturers pay for the label a price
242

P U R C H A S E R S

A N D

COURTS

which covers the cost of advertising on a large
scale.
Since goods bearing the trade union label c o m
monly cost somewhat more than other goods, the
workingmen w h o take the trouble to pay the price
required are stimulated to look sharply after the
integrity of the union which offers a label.
W h a t , n o w , is the position of that portion of the
public which disapproves of the union and repudi
ates its guarantee and its label? Except within the
narrow limits of the Consumers' League, with its
label on women's and children's white stitched
underwear, such

purchasers

have

no

guarantee

whatever. Moreover, only a small fraction of the
innumerable industries involved in the preparation
of apparel is included a m o n g the organizations of
labor. While labels m a y be found in m a n y cities
by seekers after men's hats and shoes, outer-wear,
neckties, gloves, shirts, etc., none is discernible for
woven underwear, on which m u c h handwork is
regularly done in h o m e s ; while for w o m e n the union
label is scarcely upon the market outside of the shoe
trade.
In the manufacture of garments and apparel of
all kinds for w o m e n , the workers are chiefly young
girls and w o m e n w h o have, hitherto, formed no
stable union; w h o have no funds for advertising on
a large scale, and no real power of enforcing any
provisions for their o w n protection or that of the
public, which has for twenty years left to them this
impossible task.
A community which turns over to the w o r k i n g
243

S O M E

ETHICAL

GAINS

w o m e n the task of assuring to it clean and w h o l e
some workrooms in the tenements, for the produc
tion of its wearing apparel, gets exactly what it de
serves,—the sweating system upon the largest scale
that the world has ever seen.
After the state of N e w York shall have arrived at
some method of doing away with tenement m a n u
facture and sweating, after these twin iniquities
shall have been effectually abolished, the trade
unions will resume their normal function of guaran
teeing to purchasers w h o ask for it, the fact that the
hours of labor and the wages are satisfactory to the
workers in the factory from which the label issues.
It is preposterous ever to have asked of them , even
inferentially, more than this.

They have had im

posed upon them by the indirect working of the
decision of the Court of Appeals in re Jacobs, a
task which it was clearly the duty of the state to
perform ; and it is in no wise to their discredit that
they have failed to do the impossible. That dis
credit attaches to the community which imposed this
unwarranted and unwarrantable burden.
Thus we have, after twenty years of effort, two
ineffectual methods of dealing with tenement m a n u
facture, pursued side by side. T h e state, by statute,,
legalizes the manufacture in the tenements of
thirty-four articles, and proceeds by a cumbersome
threefold inspection ( b y the State Factory Inspect
ors, the Board of Health Inspectors and the Tene
ment House Department), to minimize the danger
to the public health, including that of the workers
themselves. But, as has been pointed out, the p u b
244

P U R C H A S E R S

A N D

COURTS

lic health is not really safeguarded. T h e people are
merely lulled into a false sense of security.
The unions, meanwhile, have spent untold thou
sands of dollars in their effort to induce the pur
chasing public to avoid the dangers attending
sweated goods, by the individual method of discrim
ination against tenement

made

products and in

favor of goods guaranteed by the union label.
Ethical Loss T h r o u g h L a c k of Legislation.
The ethical loss by reason of this decision of the
Court of Appeals of N e w York, quite apart from
the loss of money in advertising by the unions and
in futile, hopeless inspection on the part of the state,
isquite beyond the possibility of calculation.
F r o m the day when this decision became effective,
the interests of the purchasing public and of the
tenement dwellers have been practically identical,
and both have been sacrificed to the convenience and
the profit of the manufacturers.
For twenty years the state of N e w York has p r o
claimed through its highest court that it cannot p r o
tect the homes of its industrially weakest citizens
from invasion by the materials of their industry.
These materials are owned by rich and powerful
employers, strongly organized locally and nation
ally, and are foisted upon the meager dwellings of
the poor solely for the purpose of saving to the em
ployers the cost of heat, light, cleaning and, far
more important, rent of workrooms. For the c o n
venience of the powerful, the weakest industrial
factors in the community, the widowsburdened with
young children, the daughters kept at home by b e d
245

S O M E

ETHICAL

GAINS

ridden parents, have been invaded by industry and
by inspectors. This forcing of industry into the
tenements has fostered the belief that work must be
done by all w h o live there, particularly if they are
poor and sick. Thus devotion to the needle and the
pastepot has become a sort of touchstone measuring
the "worthiness" or the "helpableness" of the w o m
en w h o have dependent members of the family.
Meanwhile, the manufacturer or the merchant
tailor, the owner of the goods, bears no responsi
bility towards the community, beyond the require
ments that he must file with the factory inspectors,
when so requested, a correct list, in the English l a n
guage, of the addresses to which he sends his goods
to be made up, and must, before sending goods into
a tenement, inquire of the Board of Health whether
there is recorded any present case of infectious or
communicable disease on the premises.
Before the case in re Jacobs can be reversed, and
work in the tenements sweepingly prohibited in the
interest of the public health, including the health of
the workers, it m a y be necessary to provide— by
w a y of one more last palliative experiment- for
placing the goods-owner under a heavy bond for the
literal fulfilment of the requirements of the legal
restrictions by all the people to w h o m his goods are
entrusted. This would be less than the m a n u f a c
turer's equitable share of the burden which he in
flicts upon society. Since it is for his o w n conven
ience and enrichment that the evil of the sweating
system is fastened upon society, he should bear the
whole burden of the cost of inspection, disinfection
246

P U R C H A S E R S

AND

COURTS

of premises and of goods which have been exposed
to infection, prosecution of offenders, etc.
Thearguments against prohibition of work in the
tenements are to be found in the decision in re
Jacobs, printed in the appendix.

The arguments

for prohibiting outright all such work are twofold,
those which affect the purchasing public in its
health and conscience; and those which affect the
workers in the tenements, in their health, their
h o m e life, their relation to their industry, and to the
life ofthe community of which they form a part.
The fact that the cigar workers obtained the pas
sage of the law prohibiting the manufacture of
cigars and tobacco in the tenements, sufficiently in
dicates their position on the subject. All the re
strictions which have been placed upon tenement
house manufacture during the twenty years since
complete prohibition thereof was blocked, have been
obtained either by the tenement-house workers, or
with their eager help.
It m a y be urged, however, that they are not
judges of what is best for themselves; that their
arguments are not sound. It is, therefore, worth
while to consider w h o the tenement-house workers
are. They are, first, the able-bodied m e n whose
fathers and sons working in other trades all have
workrooms provided for them by their employers,
such, for instance, as employees in the printing and
binding trades, in wood-working, upholstery, boot
and shoe making, and all the other industries in
which the use of steam or electricity, or the nature
of the goods, make it advantageous to the employer
247

S O M E

ETHICAL

GAINS

to have the work done in a factory or a workshop.
W h a t possible advantage is gained for these m e n
by working in their kitchens and bedrooms, in the
midst of the cooking, washing, scrubbing, and care
of the babies? Obviously none!
The second contingent of home-workers are the
able-bodied immigrant girls. These suffer the dis
advantages of losing contact with the English
speaking employers and fellow workers in the fac
tory or workshop. They use foot power instead of
steam or electricity, and thus earn less money with
more exertion. They spend the day in the same air
in which they had spent the night, losing the change
and exercise which would attend travel to and from
the factory. They lose the esprit de corps which
arises from work in a group, and their wages are
correspondingly wretched.

There is no standard of

wages and hours; they take what the employer gives
t h e m ; and they work until the task is accomplished.
For them there is no opening hour, no closing time.
W h e n work is done, they cease to drivethemachine,
not until then.
The children whose school life is sacrificed to the
need of being on hand to fetch and carry are losers,
pure and simple. So are the wretched little boys
and girls w h o are still too young to fetch and carry,
but can be employed in stringing beads and pulling
basting threads, in pasting boxes and bags, in w r a p
ping paper around strips of wire to make stems for
artificial flowers, in digging the kernels out of nuts,
or in cracking the nuts themselves.
Finally, there are the widows with young chil
248

P U R C H A S E R S

A N D

COURTS

dren, the daughters with bedridden old fathers or
mothers,—the w o m e n w h o cannot leave h o m e to
work. Forthesepersons,workinthehomeisanevil
andanevilonly. Notoneofthemcanreallysupport
herself while doing the housework and caring for
her dependents, and the community which requires
that a w o m a n so placed shall go through the forms
of work for self-support, deserves all the punish
ment that itreceives in the form of transmitted dis
ease. All such w o m e n are already in the receipt
of charitable aid, and the humane and enlightened
thing for the community to do in their case is to
make that aid adequate to their needs, absolving
them from working for the market, on condition
that they take suitable care of the invalids or the
children w h o are dependent upon them. In the
long run, the community pays m a n y times over in
the form of disease transmitted from the sickrooms,
and of reformatory life provided for the children
neglected by their overworked mothers in the effort
to do the impossible, for every economy which it
attempts to make by means of relief withheld from
such dependent families.
The m e n in the trades afflicted with tenement
work have always maintained that, if they could be
freed from their slavery to their kitchens and b e d
rooms, and enabled to work in suitable workshops,
they could then organize their trade in such ways as
to c o m m a n d wages sufficient to support their f a m
ilies, including their sick and dependent relatives.
It is only necessary to k n o w somewhat intimately
two brothers, one a tailor working at h o m e and the
249

S O M E

ETHICAL

GAINS

other a printer working in a shop, to be persuaded
of the truth of this contention. For the skill re
quired in the two trades is of about the same grade,
the difference being confined to the organization of
the industry itself.
There is a wide-spread belief that the prevailing
cheapness of ready-made clothing is due to the util
ization of the ill-paid labor of w o m e n and children
in the tenement homes ; that the wage-earner in the
non-sweated trades profits by the sufferings of the
sweaters' victims, and wears better garments by rea
son of their poverty and the degradation of this
great trade. This is, however, the exact reverse of
the truth. T h e cheapness of our garments is at
tained in spite of the sweating system, not because
of it. Indeed, it is doubtful whether the fall in
prices of garments is commensurate with the fall in
the prices of the cloth of which they are made.
Certain it is that cloth is vastly cheaper than it was
thirty years ago. The methods of placing goods of
all kinds upon the market (garments and cloth for
making garments included) have been revolution
ized in the direction of cheapness within the m e m
ory of all of us. That part of the work of making
garments which lies outside of tenements has also
been cheapened by the general application of steam
machinery to garment-cutting. These three great
modern improvements have enabled the corpora
tions which control the garment trade to prolong
the life of the foot-power sewing machine and the
tenement-house workroom.
The purchasing public, made gullible, perhaps,
250

P U R C H A S E R S

A N D

COURTS

by its o w n greed for bargains, has willinglybelieved
that in this one set of trades alone primitive ma
chines and petty shops maintaining a multitude of
middlemen were really cheaper in the end (because
they employ the worst paid w o m e n and girls to be
found in the field of manufacture) than well
equipped plants, with power furnished by steam or
electricity and conducted by managers of higher in
telligence.
It has become an axiom in political economy that
high-priced labor stimulates the application of ma
chinery. On the other hand, the presence in the
tenements of girls w h o sew on buttons and run er
rands for wages ranging from thirty cents to sev
enty cents a week, and of w o m e n w h o sew at foot
power machines for $ 3.00 to $5.00 a week from ten
to twenty hours a day during the five to seven
months which form the busy season, and receive
relief from public and private charities during the
remainder of the year, distinctly tends to prolong
the present primitive and belated equipment of this
part of the garment trades. It is, perhaps, not too
m u c h to say that the thousands of w o m e n and girls
in the tenements present a serious obstacle to the
process of lifting the garment trades from their
present degradation to the level of the factory
trades.
Under the sweating system, the wholesaler or
the merchant tailor shifts the burden of rent from
limself to the tailor w h o sews in a tenement-house
kitchen or bedroom. The wholesaler or the m e r
chant tailor farther avoids the risk attendant upon
251

S O M E

ETHICAL

GAINS

maintaining a plant equipped with steam or elec
tricity throughout the dull season. He offsets, as
far as he can, the added expense of a horde of
middlemen, by subdividing the work of the w o m e n
and girls in the tenements and simplifying it to the
utmost extreme, so that skill in the worker is re
duced to the last degree, and wages follow skill in
the direction of zero. Hence we find in the tene
ments "hand girls” whose backs grow crooked over
the simplest of hemming, felling, and sewing on
buttons, and "machine girls" whose exertion of foot
power entails tuberculosis and pelvic disorders ruin
ous to themselves at present and to their children in
the future. T h e foul, ill-ventilated, often d a m p
shops, the excessive speed and intensity of the work,
the ceaseless exertion of the limbs throughout inter
minable days, and the grinding poverty of these
workers combine to render consumption the charac
teristic disease of these trades. The very youth of
the workers increases their susceptibility to injury
and disease. Y o u n g backs grow crooked over the
machines, young eyes and membranes are irritated
by the fluff and dust disengaged from cheaply dyed
woolen goods by flying needles. The eagerness of
young workers is stimulated to the highest pitch by
ill-paid piece-work and the uncertainty of its c o n
tinuance.
All this wretchedness, attending this belated sur
vival of primitive organization in a great industry,
surely cannot permanently survive in the face of the
advantages which mechanical power possesses over
foot power. It is only a question of time when the
252

P U R C H A S E R S

A N D

COURTS

garment trades shall be placed upon the factory
level.
This change, however, cannot reasonably be ex
pected of the corporations which control the g a r
ment trades, or of the growing intelligence of the
sweaters' victims. It will be brought about, if at
all, by an enlightened public refusing to wear tene
ment-made garments, and embodying its will in p r o
hibitory legislation carried m u c h farther than the
tentative measures of regulation n o w in force.
A necessary preliminary to this revolt against
tenement goods is a clear perception of the truth
that no one (except possibly the wholesaler) profits
by the pauperism and suffering of the m e n , w o m e n
and children w h o work in tenement rooms.
To the decision of the Court of Appeals of N e w
York in the case in re Jacobs, is directly due the
continuance and growth of tenement manufacture
and of the sweating system in the United States,
and its present prevalence in N e w York.
Among

the consequences and the accompani

ments of the system are congestion of the popula
tion in the tenement districts; the ruin of h o m e life
in the dwellings used as workrooms; child labor in
the homes; endemic disease ( especially tubercu
losis) due to the overcrowding and poverty of
skilled workers; chronic pauperism of thousands of
skilled working people during a part of the year in
a series of important trades; insanity due to over
work followed by the anxiety of a prolonged period
of unemployment; and suicide, the self-inflicted
253

S O M E

ETHICAL

GAINS

deathof a garment-worker beingof almost daily oc
currence in N e w York and Chicago.
The extent of these evils cannot, of course, be
itemized in detail. They are so great at the present
time that unremitting effort is needed to abolish the
system of which they are the consequences and the
accompaniments.
For this purpose itis necessary to enact a statute
so drawn as to meet the opinion of the Court of
Appeals that a measure prohibiting only tobacco
manufacture in the tenements was insufficient. The
n e w prohibition must include all manufacture in
tenements.
The principle that the health of the employees is
not a part of the public health and, therefore, not
a reason for prohibiting a given mode of m a n u f a c
ture is no longer tenable in the presence of the de
cisions of the Supreme Court of the United States
in the cases of Holden vs. Hardy and Lochner vs.
N e w York. To assure the abandonment of this
obsolete position, however, public opinion, includ
ing the courts, must be effectively enlightened upon
every aspect of tenement-house manufacture.
In the case in re Jacobs, the Court of Appeals of
N e w York fell into the same error which has been
elsewhere pointed out in the Illinois case, Ritchie vs.
the People. The court has no apparatus for inves
tigating the conditions of industry. But the legis
lature, through its investigating committees, pos
sesses all the needful apparatus for investigation.
W h e n the court sets up its non-acquaintance with
the existing conditions as a reason for over-riding
254

P U R C H A S E R S

A N D

COURTS

the action of the legislature, the purchasing public
is left with no redress and no clear line of action
marked out for the future.
H o w can the courts be enlightened and instructed
concerning conditions as they exist? This is the
burning question which confronts both the purchas
ers and the wage-earners in all those cases in which
the health of the whole community is affected in
ways less conspicuous than epidemic smallpox.
H o w can the gradual, cumulative effect of working
conditions, and of living conditions, upon the public
health, be made obvious to the minds of the judges
composing the courts of last resort?
T h e decisions inthe cases in re Jacobs, Ritchie vs
the People, and Lochner vs. N e w York indicate that
a satisfactory reply to this question is a prerequisite
to farther ethical gains in wide industrial fields by
means of legislation.

255

APPENDIX I
C A N T O N C O T T O N MILLS vs. E D W A R D S
(Supreme Court of Georgia. June 10, 1904.)
INFANTS — CAPACITY - INJURY TO
TITION

E M P L O Y E E - Pe

Wylie Edwards, by his next friend, brought suit
againstthe Canton Cotton Mills for personal injuries,
alleging that on February 10, 1902, the plaintiff,
being a child ten years old, was employed to sweep
floorsand make bands for the spinning-room. That,
in order to get water to drink, it was necessary for
him to pass the entire length of defendant's factory,
filled with swiftly moving machinery, and that after
obtaining a drink of water, and while returning, it
machine called a “ finisher."
was necessary to pass
That he stopped to observe the lap of cotton as it
cameout of the machine ontothe roll. Boylike, and
with no knowledge of the danger, he laid his hand
on the roll, as he had seen the m a n in charge of the
machine do, when, in some w a y u n k n o w n to the
plaintiff, his hand was caught and drawn between
the rolls, to his great damage. That plaintiff was
notaware of the dangerous character of themachine,
nor had he been warned of its danger. That he
was so young as not to be aware of the dangerous
character of defendant's machinery; nor was he
256

APPENDIX

I

capable of appreciating and guarding aginst such
dangers; nor was he capable of understanding, re
membering and acting upon warnings that might
havebeen given by defendant;andofallthisdefend
ant had full knowledge.

That defendant was negli

gent, in that it retained in its employment, and re
quiredto be in its mills a m o n g its machinery, a child
tooyoung to realize and guard against a danger, and
too young to appreciate and act upon any warning,
and too youngto work in such a place. That itwas
negligent in failingto warn him, and in failing so to
guard its machinery as to make the factory safe for
him to work in. That the defendant was negligent
in not protecting him from dangers incident to work
abouta machine of whose dangers he knew nothing,
and which, by reason of his youth and inexperience,
he was incapable of guarding against.
The defendant demurred on the grounds that the
petition set out no cause of action; that the injury
was the direct result of plaintiff's o w n negligence;
that it was not negligence in defendant not to warn
plaintiff, nor was it negligence to employ a child of
the age of plaintiff, nor was itbound to inform him
as to the dangerous machines in and about the mills
on which plaintiff was not expected to work.
The court overruled the demurrer, and the c o m
pany excepted.
L A M A R , J. The age of majority and the age
under which there can be no criminal responsibility
have been arbitrarily declared by statute. But
neither nature nor the courts have fixed any definite
age at which children attain the capacity to work.
257
17

S O M E

ETHICAL

GAINS

In some children the mind outruns the body, and in
others the body outgrows themind. S o m e are weak
and undeveloped at the age of fourteen, and others
are strong and vigorous at ten. S o m e at an early
age can hunt, drive, ride, s w i m and work in m a n y
occupations with ordinary safety, while others of the
same age, with even greater physical strength, by
reason of want of experience, would be unable to
engage in the same sports or labors without serious
risk. The question of capacity, therefore, is not to
be determined as a matter of law by the courts, but
as a matter of fact by the jury; applyingtheprinciple
involved in Civ. Code 1895, § 2901, which declares
that “ due care in a child of tender years is such care
as its capacity, mental andphysical, fits itfor exercis
ing in the actual circumstances of the occasion and
situation under investigation.” The petition alleged
that the plaintiff was ten years old, ignorant of the
character ofthe machine and ofthe danger of w o r k
ing therewith as he had seen others d o ; that he had
not been warned; thathe was incapable of appreciat
ing, remembering or acting upon any warnings that
might have been given him; and that the company
was not only negligent in failing to warn plaintiff,
but also in failing to guard its machinery so as to
make the factory safe as a place in which to work.
These allegations made it proper to overrule the de
murrer. Compare Evans vs. Josephine Mills, 119
Ga. 448, 46 S. E. 674.
Judgment affirmed.

All the justices concurring.

258

A P P E N D I X II
R I T C H I E vs. T H E P E O P L E
(Supreme Court of Illinois. March 14, 1895.)
CONSTITUTIONAL L A W S U B J E C T
EXPRESSED IN
TITLE- D u e PROCESS OF L A W -- EIGHT-HOUR
FACTORY ACT-APPROPRIATIONS.
Act June 17, 1893, § 5, which declares that "no
female shall be employed in any factory or workshop
more than eight hours in any one day or 48 hours in
anyoneweek,” is unconstitutional, as depriving per
sons of property and liberty without due process of
law.
Error to criminal court, Cook county; Nathaniel
C. Sears, Judge.
Prosecution of William E. Ritchie for violation of
the eight-hour law. Defendant was convicted, and
he brings error. Reversed.
MAGRUDER, J. U p o n complaint of the factory in
spector appointed under the law hereinafternamed, a
warrant was issued by a justice of the peace of Cook
county against plaintiff in error, and upon his ap
pearance, and waiver in writing of jury trial, a trial
was had, resulting in a finding of guilty, and the im
position o f a fine offive dollars andcosts. The c o m
plaint charged that on a certain day in February,
1894, plaintiff in error employed a certain adult
259

S O M E

ETHICAL

GAINS

female ofthe age of more than 18 years at work in a
factory for more than eight hours during said day.
The plaintiff in error took an appeal to the criminal
court of Cook county, and waived a jury, and upon
trial in that court before the judge without a jury
he was convicted and fined. The case is brought to
this court by writ of error for the purpose of review
ing such judgment of the criminal court.
U p o n the trial of the cause the defendant below
submitted written propositions to be held as law in
the decision of the case. By these propositions the
trial court was asked to hold that the act of the legis
lature of Illinois entitled “ An actto regulate t h e m a n
ufacture of clothing, wearing apparel, and other ar
ticles in this state, and to provide for the appoint
ment of state inspectors to enforce the same, and to
make an appropriation therefor," approved June 17,
1893 ( L a w s Ill. 1893, p. 99), and each and every
section thereof, is illegal and void, and contrary to
and in violation of the Constitutions of Illinois and
of the United States.

The court refused all of the

propositions so submitted, and exception was taken
by the defendant.

The present prosecution, as is

conceded by counsel for both sides, is for an alleged
violation of section 5 of said act. That section is as
follows: " N o female shall be employed in any fac
tory or workship more than eight hours in any one
day or forty-eight hours in any one week .” “ F a c
tory" or "workshop” is defined in section 7 o f the act
as follows: “ The words ‘manufacturing establish
ment,' 'factory' or 'workshop,' wherever used in this
act, shallbeconstruedtomean anyplacewheregoods
260

APPENDIX

II

or products are manufactured or repaired, cleaned or
sorted, in whole or in part, for sale or for wages.”
Punishment for violation of the provisions of the act
is provided for by section 8 thereof in the following
words: “ A n y person, firm or corporation, w h o fails
to comply with any provision of this act shall be
deemed guilty of a misdemeanor, and on conviction
thereof shall be fined not less than three dollars, nor
more than one hundred dollars for each offense."
The main objection urged against the act, and that
to which the discussion of counsel on both sides is
chiefly directed, relates to the validity of section 5.
It is contended by counsel for plaintiff in error that
that section is unconstitutional as imposing u n w a r
ranted restrictions upon the right to contract. On
the otherhand, itisclaimedby counsel for the people
that the section is a sanitary provision, and justifiable
as an exercise of the police powerofthe state. Does
the provision in question restrict the right to c o n
tract? The words, “no female shall be employed,”
import action on the part of two persons. There
must be a person w h o does the act of employing and
a person w h o consents to the act of being employed.
Webster defines "employment" as not only "the act
of employing,” but also " the state of being em
ployed.” The prohibition of the statute is therefore
twofold : First, that no manufacturer or proprietor
of a factory or workshop shall employ any female
therein more than eight hours in one day; and, sec
ond, that no female shall consent to be so employed.
It thus prohibits employer and employee from
uniting their minds or agreeing upon any longer
261

S O M E

ETHICAL

GAINS

service during one day than eight hours. In other
words, they are prohibited, the one from contracting
to employ, and the other from contracting to be em
ployed, otherwise than as directed. “ To
be
'employed' in anything means not only the act of
doing it, but also to be engaged to do it; to be under
contract or orders to do it.” Hence a direction that
a person shall not be employed more than a specified
number of hours in one day is at the same time a di
rection that such person shall not be under contract
to work for more than a specified number of hours
in one day. It follows that section 5 does limit and
restrict the right of the manufacturer and his em
ployee to contract with each other in reference to the
hours of labor.
Is the restriction thus imposed an infringement
upon the constitutional rights of the manufacturer
and the employee? Section 2ofarticle2 of the c o n
stitution of Illinois provides that " n o person shall be
deprived of life, liberty or property, without due
process of law.” A number of cases have arisen
within recent years in which the courts have had oc
casion toconsider this provision, or one similar to it,
and its meaning has been quite clearly defined. The
privilegeofcontracting isboth aliberty and property
right. Liberty includes the right to acquire p r o p
erty, and that means and includes the right to make
and enforce contracts. The right to use, buy, and
sell property and contract in respect thereto is pro
tected by the constitution. Labor is property, and
the laborer has the same right to sell his labor, and
to contract with reference thereto, as has any other
262

1

APPENDIX

II

property owner. In this country the legislature has
no power to prevent persons w h o are suijuris from
makingtheir o w n contracts, nor can itinterfere with
the freedom of contract between the w o r k m a n and
the employer. The right to labor or employ labor,
and make contracts in respect thereto upon such
terms as m a y be agreed upon between the parties, is
included inthe constitutional guaranty abovequoted.
The protection of property is one of the objects for
which free governments are instituted a m o n g men.
Const. Ill. Art. 2, § 1. The rightto acquire,possess,
and protect property includes the right to make rea
sonable contracts; a n d w h e n a n o w n e r is deprived of
one of the attributes of property, like the right to
makecontracts, he is deprivedofhis property, within
the meaning of the Constitution. The fundamental
rights of Englishmen, brought to this country by its
original settlers, and wrested, from time to time, in
the progress of history, from the sovereigns of the
English nation, have been reduced by Blackstone to
three principalor primary articles, "the right of per
sonal security, the right of personal liberty, and the
right of private property.” The right to contract is
theonlywaybywhichapersoncan rightfully acquire
property by his o w n labor. “Of all the rights of
persons itis the most essential to h u m a n happiness.”
This right to contract, which is thus included in the
fundamental rights ofliberty and property, cannotbe
taken a w a y "without due process of law.” The
words “ due process of law ” have been held to be
synonymous with the words "law of the land.”
Blackstone says:

“ The third absolute right, inher
263

S O M E

ETHICAL

GAINS

ent in every Englishman, is that of property, which
consists in the free use, enjoyment and disposal of
all his acquisitions, without any control or diminu
tion, save only by the laws of the land." The " law
of the land" is "general public law, binding upon all
the members of the community, under all circum
stances, and not partial or private laws, affecting the
rights of private individuals, or classes of individ
uals.” The “ law of the land” is the opposite of
“arbitrary, unequal, and partial legislation.” State
vs. Loomis, supra. The legislature has no right to
deprive one class of persons of privileges allowed to
other persons under like conditions. The m a n w h o
is forbidden to acquire and enjoy property in the
same manner in which the rest of the community is
permitted to acquire and enjoy it is deprived of
liberty in particulars of primary importance to his
pursuit of happiness. If one m a n is denied the
right to contract as he has hitherto done under the
law, and as others are still allowed to do by the law,
he is deprived of both liberty and property to the ex
tent to which he is thus deprived of the right. In
line with these principles, it has been held that it is
not competent, under the Constitution, for the legis
lature to single out owners and employers of a par
ticular class, and provide that they shall bear b u r
densnot imposed on otherowners ofproperty or em
ployers of labor, and prohibitthem f r o m m a k i n g con
tracts which other owners oremployersarepermitted
to make.
We are not unmindful that the right to contract
m a y be subject to limitations growing out of the
264

APPENDIX

II

duties which the individual owes to society, to the
public, or the government. These limitations are
sometimes imposed by the obligation to so use one's
o w n as not to injure another, by the character of
property as affected with a public interest or devoted
to a public use, by the demands of public policy or
the necessity of protecting the public from fraud or
injury, by the want of capacity, by the needs of the
necessitous borrower as against the demands of the
extortionate lender. But the power of the legisla
ture tothus limitthe righttocontract must rest upon
some reasonablebasis, and cannotbearbitrarily exer
cised. It has been said that such power is based in
every case on some condition,and noton the absolute
right to control. W h e r e legislative enactments,
which operate upon classes of individuals only, have
been held to be valid, ithas been where the classifica
tion was reasonable and not arbitrary.
Applying these principles to the consideration of
section 5, we are led irresistiblyto the conclusionthat
itis an unconstitutional and void enactment. While
some of the language of the act is broad enough to
embracewithin itsterms themanufacture ofall kinds
ofgoods or products, other provisions are limited to
the manufacture of "coats, vests, trousers, knee
pants, overalls, cloaks, shirts, ladies' waists, purses,
feathers, artificial flowers, or cigars, or any wearing
apparel of any kind whatsoever.” The act is en
titled " An act to regulate the manufacture of cloth
ing, wearingapparelandother articles,” etc. Under
the rule of construction heretofore laid d o w n by this
court that general and specific words, which are
265

S O M E

ETHICAL

GAINS

capable of an analogous meaning, being associated
together, take color from each other, so that the gen
eral words are restricted to a sense analogous to the
less general, it would seem that the general words,
“ and other articles,” would be restricted to a m e a n
inganalogous tothemeaningofthe words " clothing,
wearing apparel,” and consequently that they would
only embrace articles of the same kind as those ex
pressly enumerated. But whether this is so, or not,
we are inclined to regard the act as one which is
partial and discriminating in its character. If it be
construed as applying only to manufacturers of
clothing, wearing apparel, and articles of a similar
nature, w e c a n see noreasonableground for prohibit
ing such manufacturers and their employees from
contracting formore than eight hours of work in one
day, while other manufacturers and their employees
are not forbidden to so contract. If the act be c o n
strued as applying to manufacturers of all kinds of
products, there is n o g o o d reason w h y t h e prohibition
should be directed against manufacturers and their
employees, and not against merchants, or build
ers, orcontractors, orcarriers, or farmers,or persons
engaged in otherbranches of industry, and their em
ployees therein. W o m e n employed by manufactur
ers are forbidden by section 5 to make contracts to
labor longer than eight hours in a day, while w o m e n
employed as saleswomen in stores, or as domestic
servants, or as bookkeepers, or stenographers, or
typewriters, or in laundries, or other occupations not
embraced under the head of manufacturing, are at
liberty to contract for as m a n y hours of labor in a
266

APPENDIX

II

dayastheychoose. T h e m a n n e r i n whichthesection
thus discriminates against one class of employers and
employees and in favorofall othersplacesit in oppo
sition to the constitutional guaranties hereinbefore
discussed, and so renders it invalid.
But, aside from its partial and discriminatingchar
acter, this enactment is a purely arbitrary restriction
upon the fundamental rights of the citizen to con
trol his or her o w n time and faculties. It substitutes
the judgment of the legislature for the judgment of
the employer and employee in a matter about which
they are competent to agree with each other.

It as

sumes to dictate to what extent the capacity to labor
m a y be exercised by the employee, and takes a w a y
the right of private judgment as to the amount and
duration of the labor to be put forth in a specified
period. W h e r e the legislature thus undertakes to
impose an unreasonable and unnecessary burden
upon any one citizen or class of citizens ittranscends
the authority intrusted to it by the constitution, even
though it imposes the same burden upon all other
citizens or classes of citizens. General laws m a y be
as tyrannical as partial laws. A distinguished
writer upon constitutional limitations has said that
general rules m a y sometimes be as obnoxious as
special, if they operate to deprive individual citizens
ofvested rights, andthat whileevery m a n has a right
to require that his o w n controversies shall be judged
by the same rules which are applied in the con
troversies of his neighbors, the whole community is
also entitled, at all times, to demand the protection
of the ancient principles which shield private rights
267

S O M E

ETHICAL

GAINS

against arbitrary interference, even though such in
terference m a y be under a rule impartial in its o p e r
ation. Section I of article 2 of the Constitution of
Illinois providesas follows: “ All m e n areby nature
free and independent, and have certain inherent and
inalienable rights; a m o n g these are life, liberty and
the pursuitofhappiness. To securethese rightsand
the protection of propertygovernments are instituted
a m o n g men , derivingtheir just powers from the c o n
sent of the governed.”

Liberty, as has already been

stated, includes the right to make contracts, as well
with reference to the amount and duration of labor
to be performed as concerning any other lawful
matter. Hence the right to make contracts is an in
herentand inalienable one, and any attempt to unrea
sonably abridge it is opposed to the Constitution.
As was aptly said in Leep vs. Railway Co., supra:
" W h e n the subject of contract is purely and exclu
sively private, unaffected by any public interest or
duty to person, to society, or government, and the
parties are capable of contracting, there is no condi
tion existingupon which the legislature can interfere
for the purpose of prohibiting the contract or con
trolling the terms thereof." An instance of the care
with which this right to contract has been guarded
m a y be found in chapter 48 of the Revised Statutes
of this state, where an act, passed in 1867, makes
eight hours of labor in certain employments a legal
day's work, "where there is no special contract or
agreement to the contrary,” and the second section
of which act contains the following provision:
" Nor shall anypersonbepreventedbyanythinghere
268

APPENDIX

II

in contained from working as m a n y hours over time
or extra hours as he or she m a y agree.” An ordi
nance of the city of Los Angeles, making it a m i s
demeanor for any contractor to employ any person
t o w o r k more than eighthours a day where the work
was tobe performedunder any contractwith the city,
was heldtobe unconstitutional and void, the supreme
court of California there saying: " It is claimed in
support of the petition that this ordinance was un
constitutional and void. We think this objection is
well taken. It is simply an attempt to prevent cer
tain parties from employing others in a lawful busi
ness, and paying them for their services, and is a
direct infringement of the right of such persons to
make and enforce their contracts. If the service to
beperformed were unlawful, or against public policy,
or the employment were such as might be unfit for
certain persons; as, forexample,females or infants,
the ordinance might be upheld as a sanitary or police
regulation, but we cannot conceive of any theory
upon which a city could be justified in making it a
misdemeanor for one of its citizens to contract with
another for services to be rendered, because the c o n
tract is that he shall work more than a limited n u m
ber of hours per day.” In the case of L o w vs.
Printing Co. (recently decided by the supreme court
of Nebraska, June 6, 1894) 59 N. W. 362, an act of
the legislature of that state, providing that eight
hours should constitute a legal day's work for all
classes of mechanics, servants, and laborers through
out the state, excepting those engaged in farm and
domestic labor, and making violation of the p r o
269

S O M E

ETHICAL

GAINS

visions a misdemeanor, was held to be unconstitu
tional and void, both as being special legislation and
as attempting to prevent persons legally competent
to enter into contracts from making their o w n c o n
tracts.
But it is claimed on behalf of defendant in error
that this section can be sustained as an exercise of
the police power of the state. The police power of
the state is that power which enables it to promote
the health, comfort, safety, and welfare of society.
It is very broad and far-reaching, but is not without
its limitations. Legislative acts passed in pursuance
of it must not be in conflict with the Constitution,
and must have some relation to the ends sought to be
accomplished; that is to say, to the comfort, welfare,
or safety of society. W h e r e the ostensible object
of an enactment is to secure the public comfort, w e l
fare, or safety, it must appear to be adapted to that
end. It cannot invade the rights of persons and
property under the guise of a mere police regulation,
when it is not such in fact; and where such an act
takes away the propertyof a citizen or interfereswith
his personal liberty, itis the province of the courts to
determine whether itis really an appropriatemeasure
for thepromotion of the comfort, safety, and welfare
of society. There is nothing in the title of the act of
1893 to indicate that it is a sanitary measure. T h e
first three sections contain provisions for keeping
workshops in a cleanly state, and for inspection to
ascertain whether they are so kept. But there is
nothing in the nature of the employment contem
plated by the act which is in itself unhealthy or un
270

APPENDIX

II

lawful or injurious to the public morals or welfare.
L a w s restraining the sale and use of opium and in
toxicating liquors have been sustained as valid under
the police power. Undoubtedly, the public health,
welfare, and safety m a y be endangered by the g e n
eral use of opium and intoxicating drinks. But it
cannot be said that the same consequences are likely
to flow from the manufacture of clothing, wearing
apparel, and other similar articles. "The m a n u f a c
ture of cloth is an important industry, essential to
the welfare of the community." We are not aware
that the preparation and manufacture of tobacco into
cigars is dangerous to the public health. It is not
the nature of the things done, but the sex of the per
sons doingthem, which is made the basis ofthe claim
that the act is a measure for the promotion of the
public health. It is sought to sustain the act as an
exercise of the police power upon the alleged ground
that it is designed to protect w o m a n on account of
her sex and physique. It will not be denied that
w o m a n is entitled to the same rights, under the c o n
stitution, to make contracts with reference to her
labor, as are secured thereby to men. The first sec
tionofthe fourteenth amendment to the Constitution
ofthe United States provides:

" N o stateshall make

or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or
property without due process of law, nor deny to
any person within its jurisdiction the equal protec
tion of the law .” It has been held that a w o m a n is
both a "citizen" and a "person” within the meaning
271

S O M E

ETHICAL

GAINS

of this section. The privileges and immunities here
referred to are,in general, "protection bythe govern
ment, with the right to acquire and possess property
of every kind, and to pursue and obtain happiness
and safety, subject, nevertheless, to such restraints
as the government m a y prescribe for the general
good of the whole." As a " citizen," w o m a n has the
right to acquire and possess property of every kind.
As a “person,” she has the right to claim the benefit
of the constitutional provision that she shall not be
deprived of life, liberty, or property without due
process of law. Involved in these rights thus g u a r
anteed to her is the right to make and enforce c o n
tracts. The law accords to her, as to every other
citizen, the right to gain a livelihood by intelligence,
honesty, and industry in the arts, the sciences, the
professions, or other vocations. Before the law, her
right to a choice of vocations cannot be said to be
Thetendency
denied or abridged on accountofsex
of legislation in this state has been to recognize the
rights of w o m a n in the particulars here specified.
The act of 1867, as above quoted, by the use of the
words "he or she," plainly declares that no w o m a n
shall be prevented by anything therein contained
from workingas manyhours overtime or extrahours
as she m a y agree; and thereby recognizes her right
to contract for more than eight hours of work in
one day. An act approved March 22, 1872, entitled
“ An act to secure freedom in the selection of an oc
cupation,” etc., provides that “ no person shall be p r e
cluded or debarred from any occupation, profession
or employment (except military) on account of sex.”
272

APPENDIX

II

The married woman's act of 1874 authorizes a m a r
ried w o m a n to sue and be sued without joining her
husband, and provides that contracts m a y be made
and liabilities incurred by her and enforced against
her to the same extent and in the same manner as if
she were unmarried; and that she m a y receive, use,
and possess her o w n earnings, and sue for the same
in her o w n name, free from the interference of her
husband or his creditors. Section 5 of the act of
1893 is broad enough to include married w o m e n and
adult singlewomen, aswellasminors. A s a general
thing, itis theprovinceofthe legislaturetodetermine
what regulations are necessary to protect the public
health and secure the public safety and welfare,
But, inasmuch assexisnobar,underthe constitution
and law, to the endowment of w o m a n with the f u n
damental and inalienable rights of liberty and prop
erty, which include the right to make her o w n c o n
tracts, the mere factof sex will not justify the legis
lature in putting forth the police power of the state
for the purpose of limiting her exercise of those
rights, unless the courts are able to see that there is
some fair, just, and reasonable connection between
such limitation and the public health, safety, or w e l
fare proposed to be secured by it.
son,supra.

People vs. Gill

Counsel for the people refer to statements in the
text-books recognizing the propriety of regulations
which forbid w o m e n to engage in certain kinds of
work altogether. Thus it is said in Cooley on C o n
stitutional Limitations, that " some employments
18

m a y be admissible for males and improper for
273

S O M E

ETHICAL

GAINS

females,and regulations recognizingthe impropriety,
and forbidding w o m e n engaging in them, would be
open to no reasonable objection.” Attention is also
called to the above-mentioned act of March 22, 1872,
which makes an exception of military service, and
provides that nothing in the act shall be construed as
requiring any female to work on streets or roads, or
serve on juries. But, without stopping to comment
upon measures of this character, it is sufficient to
say that what is said in reference to them has no ap
plication to the act of 1893. That act is not based
upon the theory that the manufacture of clothing,
wearing apparel, and other articles is an improper
occupation for w o m e n to beengaged in. It does not
inhibit their employment in factories or workshops.
On the contrary, it recognizes such places as proper
for them to work in by permittingtheir labor therein
during eight hours of each day. T h e question here
is not whether a particular employment is a proper
one for the use of female labor, but the question is
whether, in an employment which is conceded to be
lawful in itself, and suitable f o r w o m a n toengage in,
she shall be deprived of the right to determine for
herself h o w m a n y hours she can and m a y work d u r
ing each day. There is no reasonable ground- at
least none which has been made manifest to us in the
arguments of counsel— for fixing upon eight hours
in one day as the limit within which w o m a n can
work without injury to her physique, and beyond
which, if she work, injury will necessarily follow.
But the police power of the state can only be per
mitted to limit or abridge such a fundamental right
274

APPENDIX

II

as the right to make contracts when the exercise of
such power is necessary to promote the health, c o m
fort, welfare, or safety of society or the public; and
itis questionable whether itcan be exercised to pre
vent injury to the individual engaged in aparticular
calling. The court of appealsof N e w York, in pass
ing uponthe validity ofan act “ toimprovethe public
health by prohibiting the manufacture of cigars and
preparation of tobacco in any form in tenement
houses," etc., has said: " To justify this law, it
would notbe sufficient thatthe use oftobaccomay be
injurious to some persons, or that its manufacture
m a y be injurious to those w h o are engaged in its
preparation and manufacture; but it would have to
be injurious to the public health.” In re Jacobs,
supra. Tiedeman, in his work on Limitations of
Police Power, says: “ In so far as the employment
of a certain class in a particular occupation m a y
threaten or inflict damage upon the public or third
persons, there can be no doubt as to the constitution
ality of any statute which prohibits their prosecution
of that trade. But it is questionable, except in the
case ofminors,whetherthe prohibition can rest upon
the claim that the employment will prove hurtful to
them. ..
There can be no more justification for
the prohibition of the prosecution of certain callings
b y w o m e n because the employmentwill prove hurtful
to themselves than it would be for the state to pro
hibit m e n from working in the manufacture of white
lead because they are apt to contract lead poisoning,
or to prohibit occupation in certain parts of iron
275

S O M E

ETHICAL

GAINS

smelting works, because the lives of the m e n so en
gaged are materially shortened." Section 86.
We

are also referred to statements made in some

of the text-books to the effect that the legislature
m a y limit the hours of labor of w o m e n in m a n u f a c
turing establishments. These statements appear to
be based entirely upon the decision of the supreme
court of Massachusetts in Com . vs. Hamilton
Manuf'g Co., 120 Mass. 385.

There itwas held that

an act providing that no w o m a n over the age of 18
yearsshould be employed by any person, firm, or cor
poration in any manufacturing establishment more
than 10 hours in a n y o n e day was valid. But, under
the Constitution of Massachusetts (part 2, c. 1, § 1,
Art. 4), the legislature has power to ordain a l l m a n
ner of reasonable and wholesome statutes, with or
without penalties, not repugnant to the Constitu
tion, "asthey shall judge tobe forthe g o o d a n d w e l
fare of the commonwealth, and for the governing
and ordering thereof, and of the subjects of the
same.” The decision referred to was evidently made
in view of the large discretion so vested in the legis
lative branch of the government; and it was said
that the act ought to be maintained as a health or
police regulation, because the legislature deemed the
employment of manufacturing dangerous to health.
But the Massachusetts case is not in line with the
current of authority, as it assumes that the police
power is practicallywithout limitation. As has been
already stated, the legislature cannot so use that
power as to invade the fundamental rights of the
citizen; and it is for the courtsto decidewhether a
276

APPENDIX

II

measure, which assumes to have been passed in the
interestof the publichealth, really “relates to, andis
convenient and appropriate to promote, the health.”
We said in Lake View vs. Rose Hill Cemetery Co.,
70 Ill. 191 : “ A s a general proposition, it m a y be
stated it is the province of the law -making power to
determinewhen theexigencyexists calling intoexer
cise this power. W h a t are the subjects of its exer
cise is clearly a judicial question." The reasoning
of the opinion in the Massachusetts case cited does
not seem to us tobe sound. It assumesthat there is
no infringement upon the employer's right to con
tract, because he m a y employ as m a n y persons or as
m u c h labor as he chooses; nor upon the employee's
right to contract, because she m a y labor as m a n y
hours as she chooses in some other occupation than
that specified in the statute. This is a begging of
the question. The right to contract would be value
less if itcould notbe exercised with reference to the
particular subject-matter in hand. If its exercise is
forbidden between two persons competent to c o n
tract, and concerning a lawful subject of contract, it
is none the less abridged because other persons m a y
bepermitted tocontract,orbecausethesamepersons
maybeatlibertytocontractaboutsomeothermatter.
We cannotmore appropriately closethe discussion of
thisbranch of thecasethanbyquoting,andadopting
as our o w n , the following words of the N e w York
court of appeals in re Jacobs, supra: “ W h e n a
health law is challenged in the courts as unconstitu
tional on thegroundthat itarbitrarilyinterfereswith
personal liberty and private property, without due
277

S O M E

ETHICAL

GAINS

process of law, the courts must be able to see that it
hasatleast in factsomerelation tothepublic health,
that the public health is the end actually aimed at,
and that it is appropriate and adapted to that end.
This we have not been able to see in this law, and
we must, therefore, pronounce it unconstitutional
and void. In reaching this conclusion, we have not
been unmindful that the power which courts possess
tocondemn legislative acts which are in conflict with
the supreme law should be exercised with great c a u
tion, and even with reluctance. But, as said by
Chancellor Kent: 'It is only by the free exercise of
this power that courts of justice are enabled to repel
assaults and to protect every part of the government
andeverymember of thecommunity from u n d u e a n d
destructive innovations upon their charter rights.''
*
*
O u r conclusion is that section 5 ofthe act of 1893,
and thefirstclauseofsection 10thereof, are voidand
unconstitutional for the reasons here stated. These
are the only portions of the act which have been at
tacked in the argument of counsel. No reason has
been pointed out w h y they are not distinct and sep
arate from the balance of the act. The rule is that,
where a part of a statute is unconstitutional, the re
mainder will not be declared to be unconstitutional
also, if the two are distinct and separable, so that
the latter m a y stand though the former becomes of
no effect. We do not wish tobe understood by a n y
thing herein said as holding that section 5 would be
invalid if it waslimited in its terms to females w h o
are minors.

The judgment of the criminal court of
278

APPENDIX

II

Cook county is reversed, and the cause is remanded
to that court, with directions to dismiss the prosecu
tion. Reversed and remanded.

275

A P P E N D I X III
H O L D E N vs. H A R D Y
(Supreme Court of the United States. February 28, 1898.)
CONSTITUTIONAL L A W - D u e Process — E Q U A L
PROTECTION-EIGHT-HOUR L A W S
1. “ Due process of law ” implies at least a c o n
formity with natural and inherent principles of jus
tice, and forbids that one man's property, or right
to property, shall be taken for the benefit of another,
or for the benefitof the state, without compensation,
and that no one shall be condemned in his person or
property without an opportunity of being heard in
his o w n defense.
2. The Utah statute forbidding the employment
of workingmen for more than eight hours per day
in mines, and in the smelting, reduction, or refining
of ores or metals, is within the police power of the
state, and not an unconstitutional interference with
the right of private contract, or a denial of due
process of law or the equal protection of the laws.
Mr. Justice Brewer and Mr. Justice Peckham dis
senting
In Error to the Supreme Court of the State of
Utah.
These were writs of error to review two j u d g
ments of the Supreme Court of the state of Utah
280

APPENDIX

III

denying application of the plaintiff in error, Holden,
for his discharge upon two writs of habeas corpus,
and remanding him to the custody of the sheriff of
Salt Lake county.
The facts in case No. 264 were substantially as
On June 20, 1896, complaint was made to
a justice of the peace of Salt Lake City that the pe
titioner, Holden, had unlawfully employed “one
John Anderson to work and labor as a miner in the
underground workings of the Old Jordan Mine, in
Bingham cañon, in the county aforesaid, for the
period of ten hours each day; and said defendant,
follows:

on the date aforesaid and continuously since said
time, has unlawfully required said John Anderson,
under and by virtue of said employment, to work
and labor in the underground workings of the mine
aforesaid for the period of ten hours each day, and
that said employment was not in case of an emer
gency, or where life or property was in imminent
danger,-contrary," etc.
Defendant, Holden, having been arrested upon a
warrant issued upon said complaint, admitted the
facts set forth therein, but said he was not guilty,
because he is a native-born citizen of the United
States, residing in the state of Utah; that the said
John Anderson voluntarily engaged his services for
the hours per day alleged; and, that the facts
charged did not constitute a crime, because the act
of the state of Utah which creates and defines the
supposed offense is repugnant to the Constitution
of the United States in these respects:
“ It deprives the defendant and all employers and
281

S O M E

ETHICAL

GAINS

employees of the right to make contracts in a lawful
way, and for lawful purposes.
" It is class legislation, and not equal or uniform
in its provisions.
" Itdeprives the defendant and employers and em
ployees of the equal protection of the laws, abridges
the privileges and immunities of the defendant as a
citizen of the United States, and deprives him of
his property and liberty without due process of
law."
The court, having heard the evidence, found the
defendant guilty as charged in the complaint, im
posed a fine of $50 and costs, and ordered that the
defendant be imprisoned in the county jail for a
term of 57 days, or until such fine and costs be paid.
Thereupon petitioner sued out a writ of habeas
corpus from the Supreme Courtofthe state; a n n e x
ing a copy of the proceedings before the justice of
the peace, and praying his discharge. The Supreme
Court denied his application, and remanded him to
the custody of the sheriff, whereupon he sued out
this writ of error, assigning the unconstitutionality
of the law.
In the second case the complaint alleged the un
lawful employment by Holden of one William
Hooley to work and labor in a certain concentrating
mill— the same being an institution for the reduc
tion of ores— for the period of 12 hours per day.
The proceedings inthis case were precisely the same
as in the prior case, and it was admitted that there
was no distinction in principle between the two
cases,
282

APPENDIX

III

J. M. Wilson, for plaintiff in error.
Pence, for defendant in error.

Chas. J.

Mr. Justice B r o w n , after stating the facts in the
foregoing language, delivered the opinion of the
court.
This case involves the constitutionality of an act
of the legislature of Utah entitled " An act regulat
ing the hours of employment in underground mines
and in smelters and ore reduction works.” T h e
following are the material provisions:
“ Section 1. The period of employment of w o r k
ingmen in all underground mines or workings shall
be eight hours per day, es
in cases of e m e r
gency where life or property is in imminent danger.
" Sec. 2. The period of employment of working
m e n in smelters and all other institutions for the re
duction or refining of ores or metals shall be eight
hours per day, except in cases of emergency where
life or property is in imminent danger.
“Sec. 3. A n y person, body corporate, agent,
manager, or employer, w h o shall violate any of the
provisions of sections one and two of this act, shall
be guilty of a misdemeanor."
The Supreme Court of Utah was of opinion that,
if authority in the legislature were needed for the
enactment of the statute in question, it was found in
that part of article 16 of the constitution of the
state which declared that "the legislature shall pass
laws to provide for the health and safety of em
ployees in factories, smelters and mines." As the
article deals exclusively with the rights of labor. it
is here reproduced in full, as exhibiting the author
283

S O M E

ETHICAL

GAINS

ity under which the legislature acted, and as t h r o w
ing light upon its intention in enacting the statute
in question ( L a w s 1896, p. 219) :
" Section 1. The rights of labor shall have just
protection through laws calculated to promote the
industrial welfare of the state.
“ Sec. 2. The legislature shall provide by law for
a board of labor, conciliation and arbitration which
shall fairly represent the interests of both capital
and labor. The board shall perform duties and re
ceive compensation as prescribed by law.
“ Sec. 3. T h e legislature shall prohibit:
“ ( 1) The employment of w o m e n , or of children
under the age of fourteen years, in underground
mines.
“ (2)

T h e contracting of convict labor.

“ (3) The labor of convicts outside prison
grounds, except on public works under the direct
control of the state.
" (4)

The political and commercial control of
employees.
" Sec. 4. The exchange of blacklists by railroad
companies, or other corporations, associations or
persons is prohibited.
" Sec. 5. The right of action to recover damages
for injuries resulting in death shall never be abro
gated, and the amount recoverable shall not be s u b
ject to any statutory limitation.
"Sec. '6. Eight hours shall constitute a day's
work on all works or undertakings carried on or
aided by the state, county or municipal govern
ments; andthe legislaturesshall pass laws to provide
284

APPENDIX

III

for the health and safety of employees in factories,
smelters and mines.
"Sec. 7.

The legislature, by appropriate legisla

tion, shall provide for the enforcement of the p r o
visions of this article."
The validity of the statute in question is, however,
challenged upon the ground of an alleged violation
of the fourteenth amendment to the Constitution of
the United States, in that it abridges the privileges
or immunities of citizens of the United States, de
prives both the employer and the laborer of his
property without due process of law, and denies to
them the equal protection of the laws. As the three
questions of abridging their immunities, depriving
them of their property, and denying them the pro
tection of the laws, are so connected that the au
thorities upon each are, to a greater or less extent,
pertinent to the others, they m a y properly be c o n
sidered together.
Prior to the adoption of the fourteenth a m e n d
ment, there was a similar provision against depriva
tion of life, liberty, or property without due process
of law incorporated in the fifth a m e n d m e n t ; but as
the first eight amendments to the Constitution were
obligatory only upon congress, the decisions of this
court under this amendment have but a partial ap
plication to the fourteenth amendment, which op
erates only upon the action of the several states.
The fourteenth amendment, which was finally
adopted July 28, 1868, largely expanded the power
of the federal courts and congress, and for the first
time authorized the former: to declare invalid all
285

S O M E

ETHICAL

GAINS

laws and judicial decisions of the states abridging
the rights of citizens, or denying them the benefit of
due process of law.
This amendment was first called to the attention
of this court in 1872, in an attack upon the c o n
stitutionality of a law of the state of Louisiana,
passed in 1869, vesting in a slaughter-house c o m
pany therein named the sole and exclusive privilege
of conducting and carrying on a live-stock landing
and slaughter-house business within certain limits
specified in the act, and requiring all animals in
tended for sale and slaughter to be landed at their
wharves or landing places. While the court in that
case recognized the fact that the primary object of
this amendment was to secure to the colored race,
then recently emancipated, the full enjoyment of
their freedom, the further fact that it was not re
stricted to that purpose was admitted both in the
prevailing and dissenting opinions, and the validity
of the act was sustained as a proper police regula
tion for the health and comfort of the people. A
majority of the cases which have since arisen have
turned, not upon a denial to the colored race of
rights therein secured to them, but upon alleged
discriminations in matters entirely outside of the
political relations of the parties aggrieved.
These cases m a y be divided, generally, into t w o
classes: First, where a state legislature or a state
court is alleged to have unjustly discriminated in
favor of or against a particular individual or class
of individuals, as distinguished from the rest of the
community, or denied them the benefit of due
286

APPENDIX

III

process of law; second, where the legislature has
changed its general system of jurisprudence by
abolishing what had been previously considered
necessary to the proper administration of justice, or
the protection of the individual.
A m o n g thoseof the first class, which, for the sake
of brevity, m a y be termed "unjust discriminations,"
are those wherein the colored race was alleged to
have been denied the right of representation upon
juries, as well as those wherein the state was
charged with oppressing and unduly discriminating
against persons of the Chinese race, and those
wherein it was sought, under this amendment, to
enforce the right of w o m e n to suffrage, and to ad
mission to the learned professions.
To this class is also referable all those cases
wherein the state courts were alleged to have de
nied to particular individuals the benefit of due
process of law secured to them by the statutes of the
state, as well as that other large class, to be more
specifically mentioned hereafter, wherein the state
legislature was charged with having transcended its
proper police power in assuming to legislate for the
health or morals of the community.
Cases arising under the second class, wherein a
state has chosen to change its methods of trial to
meet a popular demand for simpler and more ex
peditious forms of administering justice, are m u c h
less numerous, though of even greater importance,
than the others. A reference to a few of these
cases m a y not be inappropriate in this connection.
Thus, in Walker vs. Sauvinet, 92 U. S. 90, which
287

S O M E

ETHICAL

GAINS

was an action brought by a colored m a n against the
keeper of a coffee house in N e w Orleans for refus
ing him refreshments, in violation of the constitu
tion of the state securing to the colored race equal
rights and privileges in such cases, a statute of the
state provided that such cases should be tried by
jury, if either party demanded it, but, if the jury
failed to agree, the case should be submitted to the
judge, w h o should decide the same. It was held
that a trial by jury was not a privilege or immunity
of citizenship which the states were forbidden to
abridge, but the requirement of due process of law
was met if the trial was had according to the settled
course of judicial proceedings. “ Due process of
law,” said Chief Justice Waite, “ is process due ac
cording to the law of the land. This process in the
states is regulated by the law of the state.” This
law was held not to be in conflict with the Constitu
tion of the United States.
*
*
*
*
In Railway Co. vs. Mackey, 127 U. S. 205, 8 Sup.
Ct. 1161, it was said that a statute in Kansas abol
ishing the fellow-servant doctrine, as applied to rail
w a y accidents, did not deny to railroads the equal
protection of the laws, and was not in conflict with
the fourteenth amendment. The same ruling was
made with reference to statutes requiring railways
to erect and maintain fences and cattle guards, and
make them liable in double the amount of damages
claimed, for the want of them.
In Hallinger vs. Davis, 146 U. S. 314, 13 Sup. Ct.
105, it was held that a state statute conferring upon
288

APPENDIX

III

an accused person the right to waive a trial by jury,
and to elect to be tried by the court, and conferring
power upon the court to try the accused in such
case, was not a violation of the due-process clause
of the fourteenth amendment.
*
*
An examination of both these classes of cases un
der the fourteenth amendment will demonstrate
that, in passing upon the validity of state legisla
tion under that amendment, this court has not failed
to recognize the fact that the law is, to a certain ex
tent, a progressive science; that, in some of the
states, methods of procedure which, at the time the
constitution was adopted, were deemed essential to
the protection and safety of the people, or to the
liberty of the citizen, have been found to be no
longer necessary; that restrictions which had for
merly been laid upon the conduct of individuals, or
of classes of individuals, had proved detrimental to
their interests, while, upon the other hand, certain
other classes of persons (particularly those engaged
in dangerous or unhealthful employments), have
been found to be in need of additional protection.
Even before the adoption of the constitution, m u c h
hadbeendonetoward mitigating theseverityof the
c o m m o n law, particularly in the administration of
its criminal branch. The number of capital crimes
in this country, at least, had been largely decreased.
Trial by ordeal and by battle had never existed here,
and had fallen into disuse in England. The earlier
practise of the c o m m o n law, which denied the b e n
efit of witnesses to a person accused of felony, had
19
289

S O M E

ETHICAL

GAINS

been abolished by statute, though, so far as it de
prived him of the assistance of counsel and c o m p u l
sory process for the attendance of his witnesses, it
had not been changed in England. But, to the
credit of her American colonies, let it be said that
so oppressive a doctrine had never obtained a foot
hold there.
The present century has originated legal reforms
of no less importance. The whole fabric of special
pleading, once thought to be necessary to the elimi
nation of the real issue between the parties, has
crumbled to pieces. The ancient tenures of real
estate have been largely swept away, and land is
n o w transferred almost as easily and cheaply as
personal property. Married w
wo
om
me
en
n have been
emancipated from the controlof their husbands,
and placed upon a practical equality with them,
with respect to the acquisition, possession, and
transmission of property. Imprisonment for debt
has been abolished.

Exemptions from execution

havebeen largely added to, and inmostofthe states
homesteads are rendered incapable of seizure and
sale upon forced process. Witnesses are no longer
incompetent by reason of interest, even though they
be parties to the litigation. Indictments have been
simplified, and an indictment for the most seriousof
crimes is n o w the simplest of all.

In several of the

states, grand juries, formerly the only safeguard
against a malicious prosecution, have been largely
abolished; and in others the rule of unanimity, so
far as applied to civil cases, has given w a y to ver
dicts rendered by a three-fourths majority. This
290

APPENDIX

III

case does not call for an expression of opinion as to
the wisdom of these changes, or their validity under
the fourteenth amendment, although the substitu
tion of prosecution by information in lieu of indict
ment was recognized as valid in Hurtado vs. Cali
fornia, 110 U. S., 516, 4 Sup. Ct., 111, 292. They
are mentioned only for the purpose of calling atten
tion to the probability that other changes of no less
importance m a y be made in the future, and that,
while the cardinal principles of justice are i m m u
table, the methods by which justice is administered
are subject to constant fluctuations, and that the
Constitution of the United States, which is neces
sarily and to a large extent inflexible, and exceed
ingly difficult of amendment, should not be so con
strued as to deprive the states of the power to so
amend their laws as to make them conform to the
wishes ofthe citizens, as t h e y m a y deembest for the
public welfare, without bringing them into conflict
with the supreme law of the land.
Of course, it is impossible to forecast the charac
ter or extent of these changes; but in view of the
fact that, from the day M a g n a Charta was signed to
the present moment, amendments to the structure
of the law have been made with increasing fre
quency, itis impossible to suppose that they will not
continue, and the law be forced to adapt itself to
n e w conditions of society, and particularly to the
n e w relations between employers and employees, as
theyarise.
*

*

*

The same subject was also elaborately discussed
291

S O M E

ETHICAL

GAINS

by Mr. Justice Matthews in delivering the opinion
in Hurtado vs. California: " This flexibility and
capacity for growth is the peculiar boast and excel
. The Constitu
lence of the c o m m o n law.
United
States
ordained,
tion of the
was
it is true,
by descendants of Englishmen, w h o inherited the
traditions of English law and history; but it was
made for an undefined and expanding future, and
for a people gathered and to be gathered from m a n y
nations, and of m a n y tongues. A n d , while we take
just pride in the principles and institutions of c o m
m o n law, we are not to forget that, in lands where
other systems of jurisprudence prevail, the ideas
and processes of civil justice are also not unknown.
D u e process of law, in spite of the absolutism of
continental governments, is not alien to that code
which survived the R o m a n Empire as the founda
tion of modern civilization in Europe, and which
has given us that fundamental m a x i m of distribu
tive justice, -'Suum cuique tribuere. There is
nothing in M a g n a Charta, rightly construed as a
broad charter of public right and law, which ought
to exclude the best ideas of all systems and of every
age; and, as itwas the characteristic principle ofthe
c o m m o n law to draw its inspiration from every
fountain of justice, we are not to assume that the
sources of its supply have been exhausted. On the
contrary, we should expect that the n e w and various
experiences of our o w n situation and system will
mold and shape it into new, and not less useful,
forms." We
have seen no reason to doubt the
soundness of these views. In the future growth of
292

APPENDIX

III

the nation, as heretofore, it is not impossible that
congress m a y see fit to annex territories whose ju
risprudence is that of the civil law. O n e of the
considerations moving to such annexation might
be the very fact that the territory so annexed should
enter the Union with its traditions, laws and sys
tems of administration unchanged. It would be a
narrow construction of the Constitution to require
them to abandon these, or to substitute for a system
which represented the growth of generations of in
habitants a jurisprudence with which they had had
no previous acquaintance or sympathy.
We do not wish, however, to be understood as
holding that this power is unlimited. While the
people of each state m a y doubtless adopt such sys
tems of laws as best conform to their o w n tradi
tions and customs, the people of the entire country
have laid d o w n in the Constitution of the United
States certain fundamental principles, to which
each member of the Union is bound to accede as a
condition of its admission as a state.

Thus, the

United States are bound to guaranty to each state a
republican form of government, and the tenth sec
tion of the first article contains certain other speci
fied limitations upon the power of the several states,,
the object of which was to secure to congress para
mount authority with respect to matters of universal
concern.

In addition, the fourteenth amendment

contains a sweeping provision forbidding the states
from abridging the privileges and immunities of
citizens of the United States, and denying them the
293

S O M E

ETHICAL

GAINS

benefit of due process or equal protection of the
laws.
This court has never attempted to define with
precision the words “ due process of law ,” nor is it
necessary to do so in this case. It is sufficient to
say that there are certain immutable principles of
justice, which inhere in the very idea of free g o v
ernment, which no m e m b e r of the Union m a y disre
gard, as that no m a n shall be condemned in his
person or property without due notice, and an op
portunity of being heard in his defense. W h a t shall
constitute due process of law was perhaps as well
stated by Mr. Justice Curtis in Murray's Lessees vs.
Land Co., 18 H o w . 272, 276, as anywhere. He said:
" The Constitution contains no description of those
processes which it was intended to allow or forbid.
It does not even declare what principles are to be
applied to ascertain whether it be due process. It
is manifest that it was not left to the legislative
power to enact any process which might be devised.
The article is a restraint on the legislative as well as
on the executive and judicial powers of the govern
nient, and cannot be so construed as to leave c o n
gress free to make any process ‘due process of law'
by its mere will.

To what principles, then, are we

to resort to ascertain whether this process enacted
by congress is due process? To this the answer
must be twofold:

We

must examine the Consti

tution itself, to see whether this process be in c o n
flict with any of its provisions. If not found to be
so, we must look to those settled usages and modes
of proceeding existing in the c o m m o n and statute
294

APPENDIX

III

law of England, before the emigration of our an
cestors, and which are shown not to have been un
suited to their civil and political condition, by h a v
ing been acted on by them after the settlement of
this country."
It was said by Mr. Justice Miller, in delivering
the opinion of this court in Davidson vs. N e w Or
leans, 96 U. S. 97, that the words “law of the land,”
as used in M a g n a Charta, implied a conformity with
the "ancient and customary laws of the English
people," and that it was wiser to ascertain their
intent and application by the “ gradual process of
judicial inclusion and exclusion as the cases pre
sented for decision shall require, with the reasoning
on which such decisions m a y be founded.” R e c o g
nizing the difficulty in defining with exactness the
phrase " due process of law," it is certain that these
words imply a conformity with natural and inherent
principles of justice, and forbid that one man's
property or right to property, shall be taken for the
benefit of another, or for the benefit of the state,
without compensation, and that no one shall be c o n
demned in his person or property without an oppor
tunity of being heard in his o w n defense.
As the possession of property, of which a person
cannot be deprived, doubtless implies that such
property m a y be acquired, it is safe to say that a
state law which undertakes to deprive any class of
persons of the general power to acquire property
would alsobe obnoxious tothe same provision. In
deed, we m a y go a step further, and say that as
property can only be legally acquired, as between
295

S O M E

ETHICAL

GAINS

living persons, by contract, a general prohibition
against entering into contracts with respect to prop
erty, or having as their object the acquisition of
property, would be equally invalid.
The latest utterance of this court upon this s u b
ject is contained in the case of Allgeyer vs. Louisi
ana, 165 U. S. 578, 591, 17 Sup. Ct. 427, in which it
was held that an act of Louisiana which prohibited
individuals within the state from making contracts
of insurance with corporations doing business in
N e w York was a violation of the fourteenth a m e n d
ment. In delivering the opinion of the court, Mr.
Justice P e c k h a m remarked: “ In the privilege of
pursuing an ordinary calling or trade, and of ac
quiring, holding, and selling property must be em
braced the right to make all proper contracts in re
lation thereto; and, although it m a y be conceded
that this right to contract in relation to persons or
property, or to do business within the jurisdiction
of the state, m a y be regulated, and sometimes pro
hibited, when the contracts or business conflict with
the policy of the state as contained in its statutes,
yet the power does not and cannot extend to p r o
hibiting a citizen from making contracts of the na
ture involved in this case, outside of the limits and
jurisdiction of the state, and which are also to be
performed outside of such jurisdiction."
This right of contract, however, is itself subject
to certain limitations which the state m a y lawfully
impose in the exercise of its police powers.

While

this power is inherent in all governments, it has
doubtless been greatly expanded in its application
296

APPENDIX

III

during the past century, owing to an enormous in
crease in the number of occupations which are d a n
gerous or so far detrimental to the health of em
ployees as to demand special precautions for their
well-being and protection, or the safety of adjacent
property. While this court has held (notably in
the cases of N e w Orleans vs. Davidson, 95 U. S.
465, and Yick Wo vs. Hopkins, 118 U. S. 356, 6
Sup. Ct. 1064) that the police power cannot be put
forward as an excuse for oppressive and unjust
legislation, it m a y be lawfully resorted to for the
purpose of preserving the public health, safety, or
morals, or the abatement of public nuisances, and a
large discretion " is necessarily vested in the legisla
ture, to determine, notonly what the interests of the
public require, but what measures are necessary for
the protection of such interests.” Lawton vs.
Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499.
The extent and limitations upon this power are
admirably stated by Chief Justice S h a w in the fol
lowing extract from his opinion in Massachusetts
vs. Alger, 7 Cush. 84.
“ W e think it a settled policy, growing out of the
nature of well-ordered civil society, that every
holder of property, however absolute and unquali
fied his title, holds it under the implied liability that
its use m a y be so regulated that it shall not be in
jurious to the equal enjoyment of others having an
equal right to the enjoyment of their property, nor
injurious tothe rights of the community. All prop
erty in this commonwealth, as well in the interior
as that bordering on the tide waters, is derived di
297

S O M E

ETHICAL

GAINS

rectly or indirectly from the government, and held
subject tothose general regulations which are neces
sary to the c o m m o n good and general welfare.
Rights of property, like all other social and c o n
ventional rights, are subject to such reasonable limi
tation in their enjoyment as will prevent them from
being injurious, and to such reasonable restraints
and regulations by law as the legislature, under the
government and controlling power vested in them
by the Constitution, m a y think necessary and ex
pedient.”
This power, legitimately exercised, can neither be
limited by contract nor bartered away bylegislation.
While this power is necessarily inherent in every
form of government, it was, prior to the adoption of
the constitution, but sparingly used in this country.
As we were then almost purely an agricultural p e o
ple, the occasion for any special protection of a par
ticular class did not exist. Certain profitable em
ployments, such as lotteries and the sale of intoxi
cating liquors, which were then considered to be
legitimate, have since fallen under the ban of public
opinion, and are n o w either altogether prohibited,
or made subject to stringent police regulations.
T h e power to do this has been repeatedly affirmed
by this court.
While the business of mining coal and m a n u f a c
turing iron began in Pennsylvania as early as 1716,
and in Virginia, North Carolina, and Massachusetts
even earlier than this, both mining and m a n u f a c
turing were carried on in such a limited way, and
by such primitive methods, thatnospecial laws were
298

APPENDIX

III

considered necessary, prior to the adoption of the
Constitution, for the protection of the operatives;
but, in the vast proportions which these industries
have since assumed, it has been found that they can
no longer be carried on, with due regard to the
safety and health of those engaged in them , without
special protection against the dangers necessarily
incident to these employments. In consequence of
this, laws have been enacted in most of the states
designed to meet these exigencies, and to secure the
safety of persons peculiarly exposed to these d a n
gers. Within this general category are ordinances
providing for fire escapes for hotels, theaters, fac
tories and other large buildings; a municipal inspec
tion of boilers; and appliances designed to secure
passengers upon railways and steamboats against
the dangers necessarily incident to these methods
of transportation. In states where manufacturing
is carried on t o a large extent, provision is made for
the protection of dangerous machinery against acci
dental contact; for the cleanliness and ventilation
of working rooms; for the guarding of well holes,
stairways, elevator shafts; and for the employment
of sanitary appliances. In others, where mining is
the principal industry, special provision is made for
the shoring up of dangerous walls; for ventilation
shafts, bore holes, escapement shafts, means of sig
naling the surface; for the supply of fresh air, and
the elimination, as far as possible, of dangerous
gases; for safe means of hoisting and lowering
cages; for a limitation upon the number of persons
permitted to enter a cage; that cages shall be c o v
299

S O M E

ETHICAL

GAINS

ered; and that there shall be fences and gates
around the top of shafts, besides other similar p r e
cautions.
These statutes have been repeatedly enforced by
the courts of the several states; their validity as
sumed ; and, so far as we are informed, they have
been uniformly held to be constitutional.
In Daniels vs. Hilgard, 77 Ill. 640, it was held
that the legislature had power, under the Constitu
tion, to establish reasonable police regulations for
the operating of mines and collieries, and that an act
providing for the health and safety of persons em
ployed in coal mines, which required the owner or
agent of every coal mine or colliery employing ten
m e n or more to m a k e or cause to be made an ac
curate m a p or plan of the workings of such coal
mine or colliery, was not unconstitutional, and that
the question whether certain requirements are a part
of a system of police regulations adopted to aid in
the protection of life and health was properly one of
legislative determination, and that a court should
not lightly interfere with such determination, unless
the legislature
province.

had

manifestly

transcended

its

In Pennsylvania vs. Bonnell, 8 Phila. 534, a law
providing for the ventilation of coal mines, for
speaking tubes, and the protection of cages, was
held to be constitutional, and subject to strict en
forcement.
But, if it be within the power of a legislature to
adopt such means for the protection of the lives of
its citizens, itis difficult to see w h y precautions m a y
300

APPENDIX

III

not also be adopted for the protection of their
health and morals. It is as m u c h for the interest of
the state that the public health should be preserved
as that life should be made secure. With this end
in view, quarantine laws have been enacted in most,
if not all, of the states; insane asylums, public hos
pitals, and institutions for the care and education of
the blind established; and special measures taken
for the exclusion of infected cattle, rags, and de
cayed fruit.

In otherstates laws have been enacted

limiting the hours during which w o m e n and chil
dren shall be employed in factories; and while their
constitutionality, at least as applied to w o m e n , has
been doubted in some of the states, they have been
generally upheld. Thus, in the case of C o m . vs.
Hamilton Mfg. Co., 120 Mass. 383, it was held that
a statute prohibiting the employment of all persons
under the age of eighteen, and of all w o m e n labor
ing in any manufacturing establishment more than
sixty hours per week, violates no contract of the
commonwealth implied in the granting of a charter
to a manufacturing company, norany right reserved
under the constitution to any individual citizen, and
m a y be maintained as a health or police regulation.
U p o n the principles above stated, we think the
act in question m a y be sustained as a valid exercise
of the police power of the state. The enactment
does not profess to limit the hours of all workmen,
but merely those w h o are employed in underground
mines, or in the smelting, reduction, or refining of
ores or metals. These employments, w h e n too long
pursued, the legislature has judged to be detri
301

S O M E

ETHICAL

GAINS

mental to the health of the employees; and, so long
as there are reasonable grounds for believing that
this is so, its decision upon this subject cannot be
reviewed by the federal courts.
While the general experience of mankind m a y
justify us in believing that m e n m a y engage in or
dinary employments more than eight hours per day
without injury to their health, it does not follow
that labor for the same length of time is innocuous
w h e n carried on beneath the surface of the earth,
where the operative is deprived of fresh air and s u n
light, and is frequently subjected to foul atmosphere
and a very high temperature, or to the influence of
noxious gases generated by the processes of refining
or smelting.
We concur in the following observations of the
Supreme Court of Utah in this connection:
“ The conditions with respect to health of laborers
in underground mines doubtless differ from those
in which they labor in smelters and other reduction
works on the surface. Unquestionably the atmos
phere and other conditions in mines and reduction
works differ.

Poisonous gases, dust, and impal

pable substances arise and float in the air in stamp
mills, smelters, and other works in which ores c o n
taining metals, combined with arsenic or other poi
sonous elements or agencies, are treated, reduced,
and refined, and there can be no doubt that p r o
longed effort, day after day, subject to such condi
tions and agencies, will produce morbid, noxious,
and often deadly effects in the h u m a n system . S o m e
organisms and systems will resist and endure such
302

APPENDIX

III

conditions and effects longer than others. It m a y
be said that labor in such conditions must be per
formed. Granting that, the period of labor each
day should be of a reasonable length. Twelve
hours per day would be less injurious than fourteen,
ten than twelve, and eight than ten. T h e legisla
ture has named eight. Such a period was deemed
reasonable.
The law in question is c o n
fined to the protection of that class of people en
gaged in labor in underground mines, and in smelt
ers and other works wherein ores are reduced and
refined.

This law applies only to the classes s u b
jected by their employment to the peculiar condi

tions and effects attending underground mining and
work in smelters, and other works for the reduction
and refining of ores. Therefore it is not necessary
to discuss or decide whether the legislature can fix
the hours of labor in other employments. T h o u g h
reasonable doubts m a y exist as to the power of the
legislature to pass a law, or as to whether the law
is calculated or adapted to promote the health,
safety, or comfort of the people, or to secure good
order or promote the general welfare, we must re
solve them in favor of the right of that department
of government.” 46 Pac. 1105.
The legislature has also recognized the fact,
which the experience of legislators in m a n y states
has corroborated, that the proprietors of these es
tablishments and their operatives do not stand upon
an equality, and that their interests are, to a certain
extent, conflicting. The former naturally desire to
obtain as m u c h labor as possible from their em
303

S O M E

ETHICAL

GAINS

ployees, while the latter are often induced by the
fear of discharge to conform to regulations which
their judgment, fairly exercised, would pronounce
to be detrimental to their health or strength. In
other words, the proprietors lay d o w n the rules, and
the laborers are practically constrained to obey
them. In such cases self-interest is often an unsafe
guide, and the legislature m a y properly interpose its
authority.
It m a y not be improper to suggest in this c o n
nection that although the prosecution in this case
was against the employer of labor, w h o apparently,
under the statute, is the only one liable, his defense
is not so m u c h that his right to contract has been
infringed upon, but that the act works a peculiar
hardship to his employees, whose right to labor as
long as they please is alleged to be thereby violated.
T h e argument would certainly come with better
grace and greater cogency from the latter class.
But the fact that both parties are of full age, and
competent to contract, does not necessarily deprive
the stateof the power to interfere, where the parties
do not stand upon an equality, or where the public
health demands that one party to the contract shall
be protected against himself. “ The state still re
tains an interest in his welfare, however reckless he
m a y be. The whole is no greater than the s u m of
all the parts, and when the individual health, safety,
and welfare are sacrificed or neglected, the state
must suffer."
We have no disposition to criticise the m a n y au
thorities which hold that state statutes restricting
304

APPENDIX

III

the hours of labor are unconstitutional.

Indeed, we

are not called upon to express an opinion upon this
subject. It is sufficient to say of them that they
have no application to cases where the legislature
had adjudged that a limitation is necessary for the
preservation of the health of employees, and there
are reasonable grounds for believing that such de
termination is supported by the facts. The question
in each case is whether the legislature has adopted
the statute in exercise of a reasonable discretion, or
whether its action be a mere excuse for an unjust
discrimination, or the oppression or spoliation of a
particular class.
We are of opinion that the act in question was a
valid exercise of police power of the state, and the
judgments of the Supreme Court of Utah are there
fore affirmed.
Mr. Justice Brewer and Mr. Justice P e c k h a m dis
sented.

20

305

A P P E N D I X IV
IN RE J A C O B S
(Court of Appeals of New York. January 20, 1885.)
CONSTITUTIONAL L A W - P U B L I C H E A L T H - POLICE
REGULATION
The act entitled " An act to improve the public
health, by prohibiting the manufacture of cigars and
preparation of tobacco in any form , in tenement
houses, in certain cases,” (chap. 272, L a w s 1884),
held not within the police power, and unconsti
tutional.
W h e n a health law is challenged as unconstitu
tional on the groundthatitarbitrarily interferes with
personal liberty and private property without due
process of law, the courts must be able to see that
it has, at least in fact, some relation to the public
health, and that the public health is the end actually
aimed at, and thatitisappropriateandadaptedtothat
end. Under the guise ofpolice regulations, personal
rights and private property cannot be arbitrarily in
vaded, and the determination ofthe legislature is not
final or conclusive.
( Argued December 17, 1884; decided January 20,
1885.)
Appeal from an order of the General T e r m of the
Supreme Court, first department, reversingan order,
306

APPENDIX

IV

made at Special T e r m , which dismissed the writ of
habeas corpus obtained by relator, the respondent
herein,toinquire intothe cause ofhis detention.
The essential facts appear in the opinion. Cases
cited by counsel omitted.
Opinion ofthe Court, per EARL, J.
The relatorJacobs was arrested on the 14th day of
M a y , 1884, on a warrant issued by a police justice
in the city of N e w York under the act chapter 272
of the L a w s of 1884, passed M a y 12, entitled “ A n
act to improve the public health by prohibiting the
manufacture of cigars and preparation of tobacco in
any form in tenement-houses in certain cases, and
regulating the use of tenement-houses in certain
cases.” On the evidence of the complainant he was
by the justice committed for trial, and thereafter
upon his petition, a justice of the Supreme Court
granted a writ of habeas corpus, to which a return
was made, and upon the hearing thereon the justice
made an order dismissing the writ and remanding
him to prison.

F r o m that order he appealed to the

General T e r m of the Supreme Court, which reversed
the order and discharged him from prison, on the
ground that the act under which he was arrested was
unconstitutional and therefore void. The district
attorney on behalf of the peoplethen appealed to this
court, and the sole question for our determination is,
whether the act of 1884, creating the offense for
which the relator was arrested, was a constitutional
exercise of legislative power.
The facts as they appeared before the police jus
tice were as follows: The relator at thetimeofhis
307

S O M E

ETHICAL

GAINS

arrest lived with his wife and two children in a tene
ment-house in the city of N e w York in which three
other families also lived. There were four floors in
the house, and seven rooms on each floor, and each
floor was occupied by one family living independ
ently of the others, and doirg their cooking in one
of the rooms so occupied. The relator at the time
of his arrest was engaged in one of his rooms in
preparing tobacco and making cigars, but there was
no smell of tobacco in any part of the house except
the room where he was thus engaged.
These facts showed a violation of the provisions of
the act which took effect immediately upon its pas
sage and the material portions of which are as fol
lows: “ Section 1. The manufacture of cigars or
preparation of tobacco in any form on any floor, or
in any part of any floor, in any tenement-house is
hereby prohibited, if such floor or any part of such
floor is by any person occupied as a home or resi
dence for the purpose of living, sleeping, cooking or
doing any household work therein. Section 2. A n y
house, building or portion thereof, occupied as the
h o m e or residence of more than three families living
independently of one another, and doing their cook
ing upon the premises, is a tenement-house within
the meaning of this act. Section 3. The first floor
of said tenement house on which there is a store for
the sale of cigars and tobacco shall be exempt from
the prohibition provided in section one of this act.
Section 5. Every person w h o shall be found guilty
o f a violation ofthis act, orofhavingcaused another
to commit such violation, shall be deemed guilty of
308

APPENDIX

IV

a misdemeanor, and shall be punished for every of
fense by a fine of not less than ten dollars and not
more than one hundred dollars or by imprisonment
for not less than ten days and not more than six
months, or both such fine and imprisonment. S e c
tion 6. This act shall applyonly tocities havingover
five hundred thousand inhabitants.”
W h a t does this act attempt to d o ? In form , it
makes ita crime for a cigarmaker in N e w York and
Brooklyn, the only cities in the State having a p o p u
lation exceeding 500,000, to carry on a perfectly l a w
ful trade in his o w n home. Whether he owns the
tenement-house or has hired a room therein for the
purpose ofprosecuting histrade, he cannotmanufac
ture therein his o w n tobacco into cigars for his o w n
use or for sale, and he will become a criminal for
doing that which is perfectly lawful outside of the
two cities named - everywhere else, so far as we are
able to learn, in the whole world.

He

must either

abandon the trade by which he earns alivelihood for
himself and family, or, if able, procure a room else
where, or hire himself out to one w h o has a room
upon such terms as, under the fierce competition of
trade and the inexorable laws ofsupply and demand,
he m a y be able to obtain from his employer. He
m a y choose to do his work where he can have the
supervision of his family and their help, and such
choice is denied him. He m a y choose to work for
himself rather than for a taskmaster, and he is left
without freedom of choice.

He m a y desire the ad

vantage of cheap production in consequence of his
cheap rent and family help, and ofthis he is deprived.
309

S O M E

ETHICAL

GAINS

In the unceasing struggle for success and existence
which pervades all societies of men, he m a y be de
prived of that which will enable him to maintain his
hold, and to survive. He m a y go to a tenement
house, and finding no one living, sleeping, cooking
or doing any household work upon one of the floors,
hire a room upon such floorto carryon histrade, and
afterward some one m a y commence to sleep or to do
some household work upon such floor, even without
his knowledge, and he at once becomes a criminal in
consequence of another's act. He m a y go to a tene
ment-house, and finding but two families living
therein independently, hire a room , and afterward by
subdivision ofthe families, or a change in their m o d e
of life, or in some other way, a fourth family begins
to live therein independently, and thus he m a y be
come a criminal without the knowledge, or possibly
the means of knowledge that he was violating any
law. It is, therefore, plain that this law interferes
with the profitable and free use of his property by
the owner or lessee of a tenement-house w h o is a
cigarmaker, and trammels him in the application of
his industry andthe dispositionofhis labor,and thus,
in a strictly legitimate sense, it arbitrarily deprives
him of his property and of some portion of his p e r
sonal liberty.
The constitutional guaranty that no person shall
be deprived of his property without due process of
law m a y be violated without the physical taking of
property for public or private use. Property m a y b e
destroyed, or its value m a y be annihilated; it is
owned and kept for some useful purpose and it has
310

1

APPENDIX

IV

no value unless it can be used.

Its capability for

enjoyment and adaptability to some use are essential
characteristics and attributes without which property
cannot be conceived; and hence any law which de
stroys it or its value, or takes a w a y any of its essen
tial attributes, deprives the owner of his property.
The constitutional guaranty would be of little
worth, ifthe legislaturecould, without compensation,
destroy property or its value, deprive the owner of
its use, deny him the right to live in his o w n house,
or to work at any lawful trade therein. If the legis
lature has the power under the Constitution to p r o
hibit the prosecution of one lawful trade in a tene
ment-house, then it m a y prevent the prosecution of
alltrades therein. " Questions of power,” says Chief
Justice Marshall in Brownvs. State of Maryland ( 1 2
Wheat. 419), “ do not depend upon the degree to
which it m a y be exercised. If it m a y be exercised
at all it must be exercised at will of those in whose
hands it is placed.”

Blackstone in his classification

of fundamental rights says: “ The third absolute
right inherent in every Englishman is that of prop
erty which consists in the free use, enjoyment and
disposal of all his acquisitions without any control or
diminution, save only by the law of the land.” (1
C o m . 138), in Pumpellyvs. Green BayCo. ( 1 3 Wall.
166, 177), Miller, J., says: “ There m a y be such
serious interruption to the c o m m o n and necessary
use of property as will be equivalent to a taking
within the meaning of the Constitution." In W y n e
hamer vs. People ( 1 3 N. Y. 378, 398), Comstock,
J., says: " W h e n a law annihilates the value of
311

S O M E

ETHICAL

GAINS

propertyand strips itof itsattributes, by which alone
itis distinguished as property, the owner is deprived
ofitaccordingtotheplainest interpretation, and cer
tainly within the constitutional provision intended
expressly to shield personal rights from the exercise
of arbitrary power."

In People vs. Otis ( 9 0 N. Y.

48), Andrews, J., says: “ Depriving an owner of
property of one of its attributes is depriving him of
his property within the constitutional provision."
So, too, one m a y be deprived of his liberty andhis
constitutional rights thereto violated without the
actual imprisonmentor restraint ofhis person. L i b
erty, in its broad sense as understood in this country,
means the right, not only of freedom from actual
servitude, imprisonment or restraint, but the right of
onetousehis faculties in all lawful ways,to liveand
work where he will, to earn his livelihood in any
lawful calling, and to pursue any lawful trade or
avocation. All laws, therefore, which impair or
trammel these rights, which limit one in his choice
of a trade or profession, or confine him to work or
live in a specified locality, or exclude him from his
o w n house, or restrain his otherwise lawful m o v e
ments (except as such laws m a y be passed in the
exercise bythe legislatureof thepolice power, which
will be noticed later), are infringements upon his
fundamental rights of liberty, which are under con
stitutional protection. In Butchers' Union Co. vs.
Crescent City Co. (111 U. S. 746), Field, J., says:
That a m o n g the inalienable rights as proclaimed in
theDeclaration ofIndependence"is the right of m e n
to pursue any lawful business or vocation in any
312

APPENDIX

IV

manner not inconsistent with the equal rights of
others, which m a y increase their property or develop
their faculties, soas to give themtheir highest enjoy
ment. The c o m m o n business and callings of life,
the ordinary trades and pursuits which are innocent
in themselves, and have been followed in all c o m
munities from time immemorial, must, therefore, be
free in this countryto all alike upon the same terms.
The right to pursue them without let or hindrance,
except that which is applied to all persons of the
same age, sex and condition, is a distinguishingpriv
ilege of citizens of the United States, and an essen
tial elementofthat freedomwhich they claim as their
birthright." In the same case Bradley, J., says: " I
hold that the liberty of pursuit, the right to follow
any of the ordinary callings of life, is one of the
privilegesofa citizenofthe United States," ofwhich
he cannot be deprived without invading his right to
liberty within the meaning of the Constitution. In
Live Stock, etc., Association vs. Crescent City, etc.,
C o m p a n y (1 Abb. (U. S.) 388, 398), the learned
presiding justice says: " There is no more sacred
right of citizenship than the right to pursue u n m o
lested a lawful employment in a lawful manner. It
is nothing more nor less than the sacred right of
labor.” In W y n e h a m e r vs. People, Johnson, J.,
says: “ That a law which should make it a crime
for meneithertolivein, orrent orsell theirhouses,"
would violatethe constitutional guaranty ofpersonal
liberty. In Bertholf vs. O'Reilly ( 7 4 N. Y. 509,
515), Andrews, J., says: That one could "be de
prived of his libertyin a constitutional sense without
313

S O M E

ETHICAL

GAINS

putting his person in confinement," and that a man's
right to liberty included “the right to exercise his
faculties, and to follow a lawful avocation for the
support of life.”
But the claim is made that the legislature could
passthis act in the exerciseof thepolicepower which
every sovereign state possesses. That power is very
broad and comprehensive, and is exercised to pro
mote the health, comfort, safety and welfare of so
ciety. Its exercise in extreme cases is frequently
justified by the m a x i m salus populi suprema lex est.
It is used toregulatethe useofpropertybyenforcing
the m a x i m sic utere tuo, ut alienum non loedas.
Under itthe conduct of an individual and the use of
propertymay be regulated soas to interfere, to some
extent, with the freedom of the one and the enjoy
ment of the other; and in cases of great emergency
engendering overruling necessity, property m a y be
taken or destroyed without compensation, and with
out what is commonly called due process of law.
The limit of the power cannot be accurately defined,
and the courts have notbeen able orwillingdefinitely
to circumscribe it. But the power, however broad
and extensive, is not above the Constitution. W h e n
itspeaks, its voice must be heeded. It furnishes the
supreme law, the guide for theconduct of legislators,
judges and private persons, and so far as itimposes
restraints, the police powermust be exercised in s u b
ordination thereto. Judge Cooley, speaking of the
regulation by the legislature under the police power
of the conduct of corporations holding inviolable
charters, says: “ The limit to the exercise of the
314

APPENDIX

IV

police power in these cases must be this: the regula
tions must have reference to the comfort, safety and
welfare of society; they must not be in conflict with
any of the provisions of the charter, and they must
not, under pretenseof regulation, take from the c o r
poration any of the essential rights and privileges
which the charter confers. In short, they must be
police regulations, in fact, and not amendments of
thecharterincurtailmentofthe corporate franchise."
(Const, Lim. (4th ed.) 719.) In Potter's Dwarris
on Statutes,458, itissaidthat “the limit to the exer
cise ofthe police power can only be this; the legisla
tionmusthavereferencetothe comfort, the safetyor
the welfare of society; it mustnot be in conflict with
the provisions of the Constitution." In C o m m o n
wealth_r's. Alger (7 Cush. 53, 84), S h a w , Ch. J.,
says, that the police power “was vested in the legis
lature, by the Constitution, to make, ordain and es
tablishallmannerofwholesomeand reasonablelaws,
statutesandordinances, eitherwithpenalties or with
out, not repugnant to the Constitution, as they shall
judgetobe forthegood andwelfareofthe C o m m o n
wealth and of the subjects of the same. It is m u c h
easier to perceive and realize the existence and
sources of the power than to mark its limitations or
prescribe limitsto its exercise." In Austin vs. M u r
ray ( 1 6 Pick. 121, 126), itissaid: T h e l a w will not
allow the rights of property to be invaded underthe
guise of a police regulation for the promotion of
health, when itis manifest thatsuch is not the object
and purpose of the regulation." In Watertown vs.
M a y o (109 Mass. 315, 319), Colt, J., says:
315

“ The

S O M E

ETHICAL

GAINS

law will not allow rights of property to be invaded
under the guise of a police regulation for the preser
vation of health or protection against a threatened
nuisance; and when it appears that such is not the
real object and purpose of the regulation, courts will
interfere to protect the rights of the citizen.” In the
Slaughter-house cases ( 1 6 Wall. 36, 87), Field, J.,
says: “ All sorts of restrictions and burdens are im
posed under thepolice power, and when these are not
in conflict with any constitutional prohibitions or
fundamental principles, they cannot be successfully
assailed in a judicial tribunal. . . . . But under the
pretense of prescribing a police regulation, the State
cannot be permitted to encroach upon any of the just
rights of the citizen which the Constitution intended
to secure against abridgment.”

In Coe vs. Schultze

(47Barb. 64), a learned judge speaking of the c o n
stitutional limitationsupon the policepower says: “ I
am not willing to concede that the legislature can
constitutionally declare an act or thing to be a c o m
m o n nuisance, which palpably, according to our
present experience or information, is not and cannot
be under any circumstances a c o m m o n nuisance, by
the common-law definitions or common-law de
cisions. I am not willing to conclude that the legis
lature can constitutionally declare or authorize any
sanitary commission or board to declare the keeping
or the use, in any way, of sugar or vinegar to be a
c o m m o n nuisance, because the one is sweet and the
other sour, or for any other reason. By such an un
limited power itis easy to see that any citizen might
be deprived of his property without compensation,
316

APPENDIX

IV

and without any colorable pretext that the public
good required such deprivation.” (See, also, In the
Matter ofCheesebrough, 78 N. Y. 232.)
Thesecitationsaresufficient toshowthatthepclice
power is not withoutlimitations, and that in its exer
cise the legislature must respect the great fun d a
mental rights guaranteed by the Constitution. If
this were otherwise, the power of the legislature
would be practically without limitation. In the as
sumed exercise of the police power in the interest of
the health, the welfare or the safety of the public,
every right of thecitizenmight be invaded andevery
constitutional barrier swept away.
Generally itis for the legislatureto determinewhat
laws and regulations are needed to protect the public
health and secure the public comfort and safety, and
while its measures are calculated, intended, conven
ient and appropriate to accomplish these ends, the
exercise of its discretion is not subject to review by
the courts. But they must have some relation to
these ends. Under the mere guise of police regula
tions, personal rights and private property cannot be
arbitrarily invaded, and the determination of the
legislature is not final or conclusive.

If itpasses an

act ostensibly for the public health, and thereby de
stroys or takes a w a y the property of a citizen, or
interferes with his personal liberty, then itis for the
courts to scrutinize the act and see whether it really
relates to and is convenient and appropriate to pro
mote thepublic health. Itmatters not that the legis
lature m a y in the title to the act, or in its body, de
clare that it is intended for the improvement of the
317

S O M E

ETHICAL

GAINS

public health. Such a declaration does not conclude
the courts, and they must yet determine the fact de
clared and enforce the supreme law. In Matter of
Ryers (72 N. Y. I), Folger, J., speaking of the
drainage Act then under consideration, says: “ The
leigslature has done no more than the Constitution
permitted in providing in general terms a w a y for
the promotion and preservation of the public health.
It is still for the judiciary to see to it that each oc
casion presents the necessity for the work, and that
the purpose to be reached is public." In T o w n of
Lake View i's. Rose Hill Co. ( 7 0 I11. 191), the court,
speaking of the police power, says: “ As a general
proposition, itm a y be stated that itis in the province
of the lawmaking power to determine whether the
exigencies exist calling into exercise this power.
W h a t are the subjects of its exercise is clearly a
judicial question.”

Even the power of taxation,

which is one of the broadest possessed by the legis
lature, is not without its limitations, and its action in
reference thereto m a y be scrutinized by the courts;
and that which is done under the guise of taxation
m a y be condemned as sheer spoliation and confisca
tion without due process of law. ( W e i s m e r vs.
Village of Douglas, 64 N. Y. 91 ; Stuartvs. Palmer,
74 id. 183; People vs. Equitable Trust Co., 96 id.
387.) The legislaturemaycondemnorauthorizethe
condemnation of private property for publicuse, and
it m a y , in the exercise of its discretion, determine
w h e n and upon what property the power of eminent
domain m a y be exercised; but its exercise is not be
yond the reach of judicial inquiry.. Whether or not
318

APPENDIX

IV

a use is a public one, which will justify the exercise
of the power, is a judicial question. It m a y be diffi
cult sometimes to determine whether a use is public
or private. Although the legislature m a y declare it
to be public, that does not necessarily determine its
character; it must in fact be public, and if itbe not,
no legislative fiat can make itso, and any owner of
property attempted to be taken for a use really pri
vate can invoke the aid of the courts to protect his
property rights against invasion. (Rockwell vs.
Nearing, 35 N. Y. 302; Matter of Townsend, 39 id.
171 ; Matter of Deansville Cemetery Association, 66
id. 569; Matter of Eureka Basin Warehouse and
Manufacturing Co., 96 id. 42.) The general g o v
ernment is one of limited powers particularly speci
fied in the Federal Constitution. But in addition to
the powers granted, it is provided in the Constitu
tionthatcongress shall havepower "tomake all laws
whichshallbe necessary andproper for carryinginto
execution the foregoing powers.” Under this p r o
vision, congress is not the final judge of what is
"necessary and proper," but its laws must have a
legitimate end in view, must be within the scope of
the Constitution, must be appropriate and plainly
adapted to that end, and not prohibited by, but con
sistentwith, the letter and spirit ofthe Constitution;
and whether the laws passed under the implied
powers contained in the section cited areofthe char
acter mentioned and thus justified, is always open to
judicial inquiry. (McCulloch vs. Maryland, 4
Wheat. 316, 421; Hepburn vs. Griswold, 8 Wall,
603; Legal Tender Cases, 12 id. 457; 110U. S. 421.)
319

S O M E

ETHICAL

GAINS

If it were for congress to determine when these im
plied or incidental powers should be exercised, its
powers would be without any restraint, and instead
of being a body with limited powers, it would, in its
o w n discretion, have general and unlimited power of
legislation. “Whatever meaning,” says Mr. M a d i
son (1 A n n . of Cong. 1848), “ the clauseof the C o n
stitution conferring all necessary and proper means
to carry intoeffect the enumerated powers m a y have,
none could be admitted that would give an unlimited
discretion to congress.” A n d in Marbury vs. M a d i
son (1 Cranch, 137), Chief Justice Marshall says :
" To what purpose are limitations committed to writ
ing, ifthose limitsmayat anytimebepassedbythose
intended to be restrained ? The distinction between
a government with limited and unlimited powers is
abolished if those limits do not confine the persons
on w h o m they are imposed."

Thesecitationsare apt

to show h o w the police power m a y , a n d h o w itought
not to be exercised, and h o w far its exercise is s u b
ject to judicial inquiry. A law enacted in the exer
cise of the police power must in fact be a police law.
If itbe a law for the promotion of the public health,
it must be a health law, having some relation to the
public health.
We will nowoncemorerecurtothelawunder c o n
sideration. It does not deal with tenement-houses
as such; it does not regulate the number of persons
w h o m a y live in anyone ofthem, or be crowded into
one room, nor does it deal with the mode of their
construction for the purpose of securing the health
and safety of their occupants or of the public gener
320

APPENDIX

IV

aily. It dealsmainlywith the preparationof tobacco
and the manufacture of cigars, and its purpose ob
viously was to regulate them. We must take ju
dicial notice of the nature and qualities of tobacco.
It has been in general use a m o n g civilized m e n for
more than two centuries. It is used in some form
by a majority of the m e n in this State, by the good
and bad, learned and unlearned, the rich and poor.
Its manufacture into cigars is permitted without any
hindrance, except for revenue purposes, in all civ
ilized lands. It has never been said, so far as we
can learn, and it was not affirmed even on the a r g u
ment before us, that its preparation and manufacture
into cigars were dangerousto the public health. We
are not aware, and are not able to learn, that tobacco
is even injurious to the health of those w h o deal in
it, or are engaged in its production or manufacture.
We certainly k n o w enough about itto be sure that
its manipulation in one r o o m c a n produce n o h a r m to
the health of the occupants of other rooms in the
same house. It was proved inthis casethatthe odor
of the tobacco did not extend to any of the other
rooms ofthetenement-house. Mr. SecretaryMcCul
loch in his late annual report to Congress, in which
he recommends the removal of the internal tax from
tobacco that it might thus be placed upon a footing
with other agricultural products, says : “ An article
which is so generally used and which adds so m u c h
to the comfortofthelargenumbersofourpopulation
w h o earn their livingby manual labor, cannot prop
erly be considered a luxury.” To justify this law it
would not be sufficient that the use of tobacco m a y
21
321

S O M E

ETHICAL

GAINS

be injurious to some persons,orthat its manipulation
m a y be injurious to those w h o are engaged in its
preparation and manufacture; but it would have to
be injurious to the public health. This law was not
intended to protect the health of those engaged in
cigarmaking, as they are allowed to manufacture
cigars everywhere except in the forbidden tenement
houses. It cannot be perceived h o w the cigarmaker
is to be improved in his health or his morals by forc
ing him from his h o m e and its hallowed associations
and beneficent influences, to ply his trade elsewhere.
It was not intended to protectthe health of that por
tion of the public not residing in the forbidden tene
ment-houses, as cigars are allowed to be m a n u f a c
tured in private houses, in large factories and shops
in the too crowded cities, and in all other parts of
the State. W h a t possible relation can cigarmaking
in any building have to the health of the general
public? Nor was it intended to improve or protect
the health of the occupants of tenement-houses. If
there are but three families in the tenement-house,
however numerous and gregarious their members
m a y be, the manufacture is not forbidden; and it
matters not h o w large the number of the occupants
m a y be if they are not divided into more than three
families living and cooking independently.

If a

store is kept for the sale of cigars on the first floor
of one ofthese houses, and thus more tobacco is kept
there than otherwise would be, and the baneful influ
ence of tobacco, if any, is thus increased, that floor,
however numerous its occupants, or the occupants of
the house, is exempt from the operation of the act.
322

APPENDIX

IV

·

Whatpossible relation to the health of the occupants
of a large tenement-house could cigarmaking in one
of its remote rooms have? If the legislature had in
mind the protection of the occupants of tenement
houses, w h y was the act confined in its operation to
the two cities only? It is plain that this is not a
health law, and that it has no relation whatever to
Under the guise of promoting

the public health.

the public health the legislature might as well have
banished cigarmaking from all the cities of the State,
or confined ittoa single city or town, or have placed
under a similar ban the trade of a baker, of a tailor,
of a shoemaker, of a woodcarver, or of any other of
the innocuous trades carried on by artisans in their
o w n homes. The power would have been the same,
and its exercise, so far as it concerns fundamental,
constitutional rights, could have been justified by the
same arguments. Such legislation m a y invade one
class of rights to-day and another to-morrow, and if
it can be sanctioned under the Constitution, while
far removed in time we will not be far a w a y i n prac
tical statesmanship from those ages when govern
mental prefects supervised the building of houses,
the rearingof cattle, the sowingofseedand the reap
ing of grain, and governmental ordinances regulated
the movements and labor of artisans, the rate of
wages, the price of food, the dietand clothing of the
people, and a large range of other affairs long since
in all civilized lands regarded as outside of govern
mental functions. Such governmental interferences
disturb the normal adjustments of the social fabric,
and usually derange the delicate and complicated ma
323

S O M E

ETHICAL

GAINS

chinery of industry and cause a scoreof ills whileat
tempting the removal of one.
W h e n a health law is challenged in the courts as
unconstitutional on the ground that it arbitrarily in
terferes with personal liberty and private property
without due process of law, the courts must be able
to see that it has at least in fact some relation to the
publichealth, that the publichealth isthe end actually
aimed at, and that it is appropriate and adapted to
that end. This we have not been able to see in this
law, and we must, therefore, pronounce it unconsti
tutional and void. In reaching this conclusion we
have notbeenunmindful thatthepower whichcourts
possess to condemn legislative acts which are in c o n
flict with the supreme law should be exercised with
great caution and even with reluctance. But as said
by Chancellor Kent (1 Com . 450) : " It is only by
the free exercise of this power that courts of justice
are enabled to repel assaults and to protect every
part of the government and every member of the
community from undue and destructive innovations
upon their charter rights.'
The order should be affirmed.
All concur.
Order affirmed.

324

APPENDIX V
P U R E F O O D BILL
(In the Senateof the United States. January 21, 1904.)
(Read twice andreferred to the Committee on
Manufactures.)
AN ACT FOR PREVENTING T H E ADULTERATION OR M I S
BRANDING OF FOODS OR DRUGS, A N D FOR R E G U L A T
ING TRAFFIC THEREIN, A N D FOR ALL OTHER
PURPOSES.
Be it enacted by the Senate and House of R e p r e
sentatives of the United States of America in C o n
gress assembled, That for the purpose of protecting
the commerce in food products and drugs between
the several states and in the District of Columbia
and the territories of the United States and with
ChangesBureau
ofChemistryto
Bureauof
Chemistryand
Foods,Charged
WithInspection

foreign countries the Secretary of
Agriculture shall organize the bu
reau of chemistry of the Depart
ment of Agriculture into a bureau
of chemistry and foods, which shall
have the direction of the chemical

ofFoodand
DrugProducts.

work of the present bureau of
chemistry and of the chemical work
of the other executive departments

whose respective heads m a y apply to the Secretary
of Agriculture for such collaboration, and which
shallalsobe chargedwiththe inspectionof foodand
325

S O M E

ETHICAL

GAINS

drug products, as hereinafter provided in this act.
The Secretary of Agriculture shall make necessary
rulesandregulations forcarryingoutthe provisions
ToProcureand of this act, under which the director
Analyze Som
of the bureau of chemistry and
plesofFoods
foods shall procure from time to
andDrugs.
time, or cause to be procured, and
analyzed, or cause to be analyzed or examined,
chemically, microscopically, or otherwise, samples
of foods and drugs offered for sale in original un
broken packages in the District of Columbia, in any
territory, or in any state other than that in which
they shall have been respectively manufactured or
produced, or from a foreign country, or intended
for export to a foreign country. T h e Secretary of
Agriculture is hereby authorized to employ such
chemists, inspectors, clerks, laborers, and other em
ployees as m a y be necessary to carry out the p r o
visions of this act and to make such publication of
the results of the examinations and analyses as he
deems proper.
Sec. 2. That the introduction into any state or
territory or the District of Columbia from any other
state or territory or the District of
ProhibitsIme
Columbia, or from any foreign
portationof
country, or shipment to any foreign
FoodorDrugs
country of any article of food or
Adulteratedor
Misbranded.
drugs which is adulterated or m i s
branded, within the meaning of this
act, is hereby prohibited; and any person w h o shall
ship or deliver for shipment from any state or ter
ritory or the District of Columbia to any other state
326

APPENDIX

V

or territory or the District of Columbia, or to a
foreign country, or w h o shall receive in any state
or territory or the District of Columbia from any
other state or territory or the District of Columbia,
or foreign country, or w h o , having received, shall
deliver, in original unbroken packages, for pay or
otherwise, or offer to deliver to any other person,
any such article so adulterated or misbranded with
in the meaning of this act, or any person w h o shall
sell or offer for sale in the District of Columbia or
the territories of the United States such adulterated,
mixed, misbranded, or imitated foods or drugs, or
export or offer to export the same to any foreign
country, shall be guilty of a misdemeanor, and for
such offense be fined not exceeding
Penaltyfor
two hundred dollars for the first
Dealer.
offense and for each subsequent
offense not exceeding three hundred dollars or be.
imprisoned not exceeding one year, or both, in the
discretion ofthe court: Provided, nevertheless, That
noarticle shall be deemed misbranded or adulterated
within the provisions of this act when intended for
export to any foreign country and prepared or
packed according to the specifications or directions
of the foreign purchaser when no substance is used
in the preparation or packing thereof in conflict
with the laws of the foreign country to which said
article is intended to be shipped; but if said article
shall be in fact sold or offered for sale for domestic
use or consumption, then this proviso shall not ex
empt said article from the operation of all the other
provisions of this act.
327

S O M E

ETHICAL

GAINS

Sec. 3. That the director of the bureau of c h e m
istry and foods shall make, or cause to be made,
under rules and regulations to be
Prosecutionfor
prescribed by the Secretary of Ag
Violation,
riculture, examinations of speci
mens of foods and drugs offered for sale in original
unbroken packages in the District of Columbia, in
any territory or in any stateotherthanthat in which
they shall have been respectively manufactured or
produced, or from any foreign country, or intended
for shipment to any foreign country, which m a y be
collected from time to time in various parts of the
country. If itshall appear from any such examina
tion that any of the provisions of this act have been
violated, the Secretary of Agriculture shall at once
certify the facts to the proper United States district
attorney, with a copy of the results of the analysis,
duly authenticated by the analyst under oath.
Sec. 4.

That itshall be the duty of every district

attorney to w h o m the Secretary of Agriculture shall
report any violation of this act to cause proceedings
to be commenced and prosecuted without delay for
the fines and penalties in such case provided.
DEFINITIONS
Sec. 5. That the term "drug," as used inthisact,
shall include all medicines and preparations recog
nized in the United States P h a r m a ,
Definitions.
copoeia for internal or external use.
The term "food," as used herein, shall include all
articles used for food, drink, confectionery, or c o n
dimentby m a n or domestic animals, whether simple,
328

APPENDIX
mixed, or compound.

V

The term "misbranded," as

used herein, shall apply to all drugs, or articles of
food, or articles which enter into the composition of
food, the package or label of which shall bear any
statement regarding the ingredients or substances
contained in such article, which statement shall be
false or misleading in any particular, and to any
food or drug product which is falsely branded as
to the state,territory, or country in which itismanu
facturedor produced.
ADULTERATIONS
Sec. 6. That for the purposes of this act an ar
ticle shall be deemed to be adulterated
Incase ofdrugs:
First. I f w h e n a drug is sold u n d e r o r b y a n a m e
recognized in the United States Pharmacopoeia,
it differs from the standard of
Adulterationsin
strength, quality, or purity, as de
Drugs.
termined by the test laid d o w n in
the United States Pharmacopeia official at the time
of the investigation.
Second. If its strength or purity fall below the
professed standard under which itis sold.
Third. If itb e a n imitation of or offered for sale
under the name of another article.
In the case of confectionery:
If it contain terra alba, barytes, talc, chrome
yellow, or other mineral substances
Adulterationsin
or poisonous colors or flavors, or
Confectionery
other ingredients deleterious or det
rimental to health.
In the case of food:
329

S O M E

ETHICAL

GAINS

First.

If any substance or substances has or
have been mixed and packed with it
Adulterationsin
so
as to reduce or lower so as to.
Foods.
thereby injuriously affect its quality
or strength.
Second. If any substance or substances has or
have been substituted wholly or in part for the ar
ticle.
Third. If any valuable constituent of the article
has been wholly or in partabstracted.
Fourth. If it be an imitation of or offered for
sale under the distinctive name of another article.
Fifth. If it be mixed, colored, powdered, or
stained in a manner whereby damage or inferiority
is concealed.
Sixth.

If it contain any added poisonous ingre

dient which m a y render such article injurious to
health.
Seventh.

If it be labeled or branded so as to de

ceive or mislead the purchaser, or purport to be a
foreign product when not so.
Eighth.

If it consists in whole or in part of a

filthy, decomposed, or putrid animal or vegetable
substance, or any portion of an animal unfit for
food, whether manufactured or not, or if it is the
product of a diseased animal, or one that has died
otherwise than by slaughter: Provided, That an ar
ticle of food which does not contain any added poi
sonous or deleterious ingredients shall not be
deemed to be adulterated in the following cases:
First. In the case of mixtures or compounds
which m a y be n o w or from time to time hereafter
330

APPENDIX

V

k n o w n as articles of food, under their o w n dis
tinctive names, and not included in definition fourth
of this section. Second. In the
case of articles labeled, branded, or
ArticlesLa
beled,Branded
orTagged.

tagged so as to plainly indicate that
they are mixtures, compounds, c o m
binations, imitations,

or

blends:

Provided, That the same shall be labeled, branded,
or tagged so as to s h o w the character and constitu
ents thereof: A n d provided further, That nothing
in this act shall be construed as requiring or c o m
pelling proprietors or manufacturers of proprietary
foods which contain no unwholesome ingredient to
disclose their trade formulas, except in so far as the
provisions of this act m a y require to secure freedom
from adulteration or imitation: Provided further,
That no dealer shall be convicted under the provi
sions of this act w h e n he is able to prove a written
guaranty of purity, in a form ap
Guarantyfrom
proved by the Secretary of A g r i
Manufacturer.
culture as published in his rules and
regulations, signed by the manufacturer orthe party
or parties from w h o m he purchased said articles:
Provided also, That said guarantor or guarantors
reside within the jurisdiction of the United States.
Said guaranty shall contain the full name and ad
dress of the party or parties making the sale to the
dealer, and said party or parties shall be amenable
to the prosecutions, fines, and other penalties which
would attach in due course to the dealer under the
provisions of this act: Provided, That w h e n in the
331

S O M E

ETHICAL

GAINS

preparation of food products for shipment they are
preserved b y a n externalapplication
Preservatives.
applied in such mannerthat the pre
servative is necessarily removed mechanically or by
maceration in water or otherwise, the provisions of
this act shall be construed as applying only when
said products are ready for consumption.
Sec. 7. That itshall be the duty of the Secretary
of Agriculture to fix standards of food products
when advisable for the guidance of
Standardsof
the officials charged with the ad
FoodProducts.
ministration of food laws and for
the information of the courts, and to determine the
wholesomeness or unwholesomeness of preserva
tives and other substances which are or m a y be
added to foods, and to aid him in reaching just de
cisions in such matters he is authorized to call upon
the committee on food standards of the Association
of Official Agricultural Chemists, and such other
experts as he m a y d e e m necessary.
Sec. 8. That every person w h o manufactures or
produces for shipment and delivers for transporta
tion within the District of Columbiaor any territory,
or w h o manufactures or produces for shipment or
delivers for transportation from any state, terri
tory or the District of Columbia, to any other state,
territory, or the District of Columbia, or to any
foreign country, any drug or article of food, and
every person w h o exposes for sale or delivers to a
purchaser in the District of Columbia or any terri
tory any drug or article of food manufactured or
produced within said District of Columbia or any
332

APPENDIX

V

territory, or w h o exposes for sale or delivers for
shipment any drug or article of food received from
a state, territory, or the District of Columbia other
than the state, territory, or the District of Columbia
in which he exposes for sale or delivers such drug
or article of food, or from any foreign country, shall
furnish within business hours and upon tender and
Manufacturer,
Produceror
ShipperMust
SellSamples.

full payment of the selling price a
sample of such drugs or article of
food to any person duly authorized

by the Secretary of Agriculture to
receive the same, and w h o shall
apply to such manufacturer, producer, or vender, or
person delivering to a purchaser, such drug or arti

cle of food for such sample for such use in sufficient
quantity for the analysis of any such article or ar
ticles in his possession.
Sec. 9. That any manufacturer, producer, or
dealer w h o refuses to comply, upon demand, with
the requirements of section eight of
PenaltyforRe
this act shall be guilty of a misde
fusaltoSell
meanor, and upon conviction shall
Samples.
be fined not exceeding one hundred
dollars, or imprisonment not exceeding one hundred
days, or both. A n d any person found guilty of
manufacturing or offering for sale, or selling, an
adulterated, impure, or misbranded article of food
or drug in violation of the provisions of this act
shall be adjudged to pay, in addition to the penal
ties hereinbefore provided for, all the necessary
costs and expenses incurred in inspecting and
analyzing such adulterated articles which said per
333

S O M E

ETHICAL

GAINS

son m a y have been found guilty of manufacturing,
selling or offering for sale.
Sec. 10. That this act shall not be construed to
interfere with commerce wholly internal in any
state, nor with the exercise of their
police powers by the several states;
ActDoesNot
InterfereWith
but foods and drugs fully comply
Commerce
ing with all the provisions of this
WhollyInternal
inanyState.
act shall not be interfered with by
the authorities of the several states
w h e n transported from one state to another so long
as they remain in original unbroken packages, ex
cept as m a y be otherwise provided by statutes of the
United States.
Sec. II. That any article of food or drug that is
adulterated ormisbranded within the meaningof this
Act, and is transported or being
Condemnation
transported
from one State to an
ofGoods.
other for sale, or if it be sold or
offered for sale in the District of Columbia and the
territories of the United States, or if it be imported
from a foreign country for sale, or if intended for
export to a foreign country, shall be liable to be p r o
ceeded against in any district court of the United
States, within the district where the same is found
and seized for confiscation, by a process of libel for
condemnation. A n d if such article is condemned as
being adulterated or misbranded, within the meaning
of this act, the same shall be disposed of as the said
court m a y direct, and the proceeds thereof, if sold,
less the legal costs and charges, shall be paid into the
Treasury of the United States, but such goods shall
334

APPENDIX

V

not be sold in any state contrary to the laws of that
state.

The proceedings of such libel cases shall c o n

form as near as m a y be to proceedings in admiralty,
except that either party m a y demand trial by jury of
any issue of fact joined in such case; and all such
proceedings shall be at the suit o f a n d in the name of
the United States.
Sec. 12.

That the Secretary of Agriculture is

authorized to investigate the character and extent of
the adulteration of foods, drugs and
Authorityto
liquors, and whenever he has reason
InvestigateOr
to believe that articles are being im
iginalPackages
ported from foreign countries which
byPermission
by reason of such adulteration are
ofSecretaryof
Treasury.
dangerous to the health of the
people of the United States, or of
kinds which are forbidden entry into or forbidden to
be sold or restricted in sale in the countries in which
they are made or from which they are exported, or
which shall be falsely labeled in any respect either
by the omission of the name of any added ingredient
or otherwise, or in regard to the place of m a n u f a c
ture or the contents of the package, shall make a re
quest upon the Secretaryofthe Treasury for samples
from original packages of sucharticles for inspection
and analysis; and the Secretary of the Treasury is
herebyauthorized toopen such original packages and
deliver specimens tothe Secretaryof Agriculture for
the purpose mentioned, giving due notice to the
owner or consignee of such articles, w h o m a y be
present and have the right to introduce testimony;
335

S O M E

ETHICAL

GAINS

and the Secretary of the Treasuryshall refuse deliv
ery to the consignee of any of such
Deliveryof
goods which the Secretary of A g r i
GoodstoCon
culture reports to him have been in
signeeMayBe
spected and analyzed and found to
Refusedby Sec
be dangerous to health, or of kinds
retaryofthe
which are forbidden entry into or
Treasury.
forbidden to be sold or restricted in
sale in the countries in which they are made or from
which they are exported, or which shall be falsely
labeled in any respect either by the omission of the
name of any added ingredient or otherwise, or in re
gard to the place of manufacture or the contents of
the package.
Sec. 13. This act shall be in forceand effect from
and after the first day of September, A n n o Domini
nineteen hundred and four.
Passed the House of Representatives January 19,
1904
Attest:

A. M c D o w e l l , Clerk.
This bill failed to pass the Senate both in 1 9 0 4 a n d

1905.

336

I N D E X
Addams, Jane, VI, 40.
Adulteration of foods, 210-211,
222, 225, 230, 325 (Appendix
V).
Alabama, childlaborin, 35; new
statute in, 37; nightwork in,
78; illiterate children in, 86,
89; age limit in, 91; no fac
tory inspectors in, 159.
Arkansas, 89.
Atkins vs. the State, 128.
Attendance agents, women as,
177
Australian Federation, 198.
Boston, 8,13, 14, 185-186.
Buffalo, 12, 14.
Bureauof Charities, Chicago,40.
Bureau of Labor (U. S.), 99,
105.
California, 215, 81-89.
Cambridge, Mass., 23.
Canton Cotton Mill vs. Edwards,
256.
Census (U. S.), 70,73,81, 100,
197.
Chicago, V, VI, 21, 32, 39-40,
50, 58, 60, 72, 106, 142-144,
179-180, 184, 215, 217, 219,
254.
Children's Protective Alliance in
New Jersey, 54.
Christmas crueltics, 20, 30-33.
Colorado, 106, 134, 148, 152, 161•
162, 169, 190-191, 193-194, 198
199.
Commission for Children (U.
S.), 99-104
337

Committee on Relations of Em.
ployer and Employee, 79-80.
Compulsory Education, in Alton,
Ill., 51; in Chicago, 58, 60,
184; in New York and Penn
sylvania, 73; in Massachusetts,
86; states having none, 89
90; relation tochild labor law,
96, 238.
Congestion of population, 109.
Constitutionofthe United States,
143, 146, 147-148, 152-153, 158,
163, 280 (Appendix III).
Consumers' League seeks leisure
forclerks, 106; advocatesearly
closing, 115; inspector for,
120; improvementachieved by,
126; intervention by, 136, 202,
221, 243.
Delaware, child labor law, 30;
nightwork, 91; nine hours
day, 134.
Denver, women vote for all
officials, 186-187, 190; county
judge of, 192; voting mothers
of, 193-194.
Department of Agriculture (U.
S.), 99, 103.
Department of Education, 99.
Dependent families, 41, 49-50,
52, 249; girl, 75, 110; fathers,
13; orphans, 76; widows, 63,
66.
Disabled fathers, 13, 35, 39;
parent, 35, 39, 246; relative,
33-39.
Divorce Reform League, 206.

I N D E X
Eliot, President Charles W., of
Harvard University,23.
Employers' Liability, 102, 256
(Appendix I).
Factoryacts, 89.
Factory inspector, V, 6; none in
several states, 36-38, 40; vary.
ing efficiency of, 56, 60, 64,
89, 97, 139; women as, 177,
219, 225-226, 237, 239, 244,
246.
Florida, 88.
French Canadian children, 85.
General Federation of Women's
Clubs, 106.
Georgia, no child labor law, 33
34, 38; Northern corporations
in, 61; eleven hours day, 63;
chilldren in manufacture, 70;
rank in scale of states, 86;
illiteracy in, 82-89; age limit,
91; competition with New Eng
land, 107, 134-135, 166;women
excluded frompublic life, 193;
supreme court decision in
child laborcase, 256.
Grover Cleveland, 106.
Hamilton Manufacturing Co.
(120 Mass., 283), 154, 136.
Helena, Montana, 219-220.
Holdenvs. Hardy, 128, 137, 145,
158, 160-161, 164, 233, 254,
280 (Appendix III).
Hull-House, V, VI, 40.
Idaho, women vote in, 198.
Illinois, V; child labor law of
1903, 30; end of working day,
32; age limit, 33; children in
mines, 38; laws of 1891, 1893,
1897 and 1903, 39; scholar.
ships, 41; Alton, 43; children
imported for work, 47; ideals
of immigrants, 58-61; night
338

work prohibited, 63; enforce
ment of child labor laws, 77;
eight hours day, 80; position
in scale of states, 85-88; Su
preme Court, 128; working
week 48 hours, 134; decision
incase Ritchie vs. the People,
139, 147, 142-144; strikes in,
145, 158-160, 155-156, 158-159,
160-162; girl in trade union,
181, 200, 219; Ritchie vs. the
People, 259.
Illiterate children, 4,11, 36, 47,
54, 59; in Pennsylvania, 73;
imported by relatives, 75; in
Chicago,77; incensusof 1900,
81-89, 100.
Immigrants,6, 11; falseidealsof
parents, 58, 61; Welsh miner's
experience, 69; Russian girl
in sweatshop, 75; import il
literate children, 75; women
as inspectors of, 177; in colo
nies, 183; as purchasers, 214
215
In re Jacobs, 230-231, 233, 238,
240-241, 244, 246-247, 253-255,
306 (Appendix IV).
Indiana, 85.
Infant mortality, 4,100-101.
Institutions for children, 7; rec
ordsof, 17; erroneously called
private, 64; dependents and
delinquents together,102; com
petition with manufacturers
in sewing trades, 124; the
sweating-system in, 130; SO
called reformatory, 205.
Inter-State Commerce Commis
sion, 67.
Iowa, 93.
Italian, childimmigrants, 11; im
portation of children, 76; in
Massachusetts, 86; girlin Chi
cago school, 180; as purchas
ers, 214; olive oil, 214, 216;
sewing intenement, 237.

I N D E X
National Congress of Mothers,
106.
National Consumers'League,rec
ognition ofclerks' right to lei
sure, 106; advocates Saturday
Kansas, 39, 40, 41.
half-holiday,115; inspectorfor,
Kentucky, 37.
120; achievement of, 126; de
mandsleisure for young work.
Label of trade union, cigar
ers, 136; changing industrial
conditions affecting working
makers, 126; of cracker
women and children, 202; en
bakers, 182; tailors, 220, 240
deavor toform body oforgan
243.
ized purchasers, 221; label on
Licenses for tenement work, 8,
women's and children's white
237-238.
muslinunderwear, 243.
Lochner vs. New York, 128, 159,
National Educational Association,
233, 254-255.
106.
Louisiana,child laborin, 36; age
limit, 36; rank in scale of Nebraska,85,91, 148,152, 160.
states, 89, 91; child labor bill Needle-trades, 8, 130, 240, 217•
introduced, 93.
218, 231, 237.
London School Board, 176, 185, Nevada, 81.
188.
New Hampshire, 91,82-84.
New Jersey, 37; glass-bottle in
Maine, 91, 103.
dustry in, 52; night work in,
Maryland, 88.
53; imported boys for glass
works, 54; thrift urged for
Massachusetts, ethical standards,
8, 61, 67; rank in scale of
children, 63; children in man.
states, 70; child labor law age
ufacture,70;illiteratechildren,
limit, 78; hours of labor, 80;
82-88; rank inscale of states,
82; hoursof labor, 134; repeal
illiterate children, 82-89;
needle tradesin, 119; competi.
of Fifty-Five Hours law, 154,
tion with Georgia, 135; powers
170.
New York, V; infant mortality
oflegislature, 136, 149; protec
tion of women engaged in
in, 4; begging infants in, 5;
commerce, 137; strikesin, 145;
kindergarten children working
constitution of, 149-150, 155,
intenements, 6; subsidized in
164; educational qualification
stitutions, 7; child labor law
forvoting, 173.
of 1903, 11; Child Labor Com
Mercantile inspection, 27, 169,
mittee, 12; penalcodeaffecting
201-202.
telegraph boys, 18; corpora
Michigan, 68,82-85.
tions having branches in the
Mississippi,89, 134.
South, 61; needle-trades subsi.
Missouri, 36, 39, 161.
dized, 64; comparison with
Montana, 134.
children in manufacture in
Municipal milk supply, 224.
Pennsylvania, 70-73; illiterate
children in, 82-88; sweating
National Child Labor Committee,
system, 111; Court of Appeals
106.
decision Peoplevs. Orange Co.
339

Juvenile court, observations re
garding messenger service, 17;
insufficient number of, 102,
189.

I N D E X
Road Construction Co., 128;
hoursof laborofchildren,143,
137-138, 144, 160, 169; insuffi
cient schools, 187-188; Found
ling Asylum, 194; clerksinsuf.
ficiently protected, 200-202;
consumptive tenement-workers,
213, 215, 231, 233, 237, 244
245, 253; in re Jacobs, 306
(Appendix IV.).
New Zealand, 196-198.
Night inspections, 44, 96.
Night work, of newsboys, 15; of
telegraph and messenger boys,
20; ofchildren in retail trade,
30-33; in manufacture, 34-36
and 45 etseq.;inglass works,
53 etseq., 71, 73; in Pennsyl.
vania and Rhode Island, 78;
in Illinois, 139, 143-144; in
Alabama, 169; in New Jersey,
170.
North Carolina, child labor law
of 1903,35-37; childrenincoal
mines, 39; in manufacture,70;
rank inthe scale ofstates, 82
89; illiterate children, 82-89;
age limit, 91; age of consent,
194.
North Dakota, 91.
Nurses' Settlement, V.
Ohio, 25, 85,82-89.
Oregon, 85.
Orphans in the glass industry,
43; maintenance of, 66; a so
cial and industrial phenom
enon, 67; imported to work,
76; need of a Commission for
Children, 100-102.

People vs. the Orange Co. Road
Construction Co., 128.
Police matrons, women as, 177.
Probation officers, women
177
Portuguese children, 86.
Poverty, 42, 50 et seq., 54, 58,
98, 220, 253.
Public Education Association of
New York City, 173.
Pure Food bill, 325 (Appendix
V.).
Registrationofbirths, 100.
Retail Dealers' Association of
New York City, 169,201.
Ritchie vs. the People, 128, 143,
145, 147, 155, 254-255, 259
(Appendix II.).
Rhode Island, 70, 78, 91.
Rochester, N. Y.,municipalmilk
supply, 224.
Russian children, 11, 74, 76, 86.
Sanitary inspectors, women as,
177
Scholarships for working chil.
dren, 40-42, 50, 52.
School nurses, 177, 188.
South Australia, women vote in,
198.
South Carolina, 70, 87, 89; age
ofconsent in, 194,216.
Speed, 43, 121.124, 159.
Strikes, 144, 168, 171, 182.
Sweating system, 159, 166, 210,
212, 218, 229, 231, 235, 240,
242, 250-251.
Syrian children, 186.

Texas, 36-37.
Parasite trades, 64-65.
Thrift, 60, 63.
Trade agreements, 114, 127, 132,
Pauper, 49, 50, 52, 217, 253.
134, 163, 165-767.
Pennsylvania, 56, 63; childrenin
manufacture, 70-78; illiterate Trade unions, 53, 55, 90, 117
children, 80-89; miners in,
126, 133, 165-167, 181, 198,
159.
201, 216, 220-221, 238, 240,
Pensions, 48, 101.
242-245.
340

I N D E X
Traveling libraries in Wyoming,
197.
United States, 8,33, 46,60,68,
186,215,253.
United States Census, 70, 81-85,
197
United States Congress, 132,
206, 325 (Appendix V).
United States Commission for
Children, 99-103.
United States Fish Commission,
101-102, 129-130.
United States Supreme Court,
106, 127-128, 132, 137, 141,
145, 148, 150-152, 155-157, 159
164, 167, 233-234, 254, 280
(Appendix III).

341

Utah, 85, 146, 149-152, 154, 157,
161, 164, 198.
Vermont, 134.
Virginia, 35, 37, 82-85, 89,91.
Washington, 85, 160-161.
West Virginia, 36, 88, 91.
Widows, 13, 35, 63,66,243, 248.
Wisconsin, 27, 70.
Women, as attendance agents,
probation
officers,
police
matrons, 176; asinspectors of
immigrants, 177; as sanitary
inspectors, tenement inspec.
tors, 177; as army nurses and
school nurses, 177.
Women's Trade Union League,
198.
Wyoming, 196-198.

T H E C I T I Z E N ' S L I B R A R Y OF
POLITICS, A N D

ECONOMICS,

SOCIOLOGY

Underthe General Editorshipof RICHARDT. ELY.PR.D., LL.D., Di.
rectorofthe Schoolof Economicsand Political Science: Proies.
sorofPolitical Economyatthe UniversityofWisconsin
12mo. HalfLeather $1.25net,each
Monopolies and Trusts. By RICHARDT. ELY,PR.D., LL.D.
" Itisadmirable. Itisthesoundestcontributiononthesubjectthat
hasappeared."--PROFESSOR John R.Coxxons.
*Byalloddsthebestwrittenof ProfessorEly'swork.” - PROFESSOR
Sinon N.PATTEN,Universityof Pennsylvania.
OutlinesofEconomics. ByRICHARDT. ELY,Pæ.D.,LL.D.,author
of" Monopoliesand Trusts," etc.
The Economics ofDistribution. By John A. Hobson, authorof
TheEvolutionofModern Capitalism," etc.
World Politics. ByPAUL S. Reinsch, Ph.D., LL.B., Professorof
Political Science,Universityof Wisconsin.
Economic Crises. By EDWARDD. JONES,Ph.D., Junior Professor
ofCommerceand Industry. UniversityofMichigan.
Governmentto Switzerland. By JOANMARTIN VINCENT, PH.D.,
Associate Professorof History, Johns HopkinsUniversity.
Political Parties inthe UnitedStates, 1846-1861. By JESSE
Macy, LL.D.,Professorof Political Sciencein Iowa College.
Essays on the Monetary History of the United States. By
CHARLES J.BULLOCK, Ph.D., Assistant Professor of Economics,
Williams College.
Social Control: ASurvey ofthe FoundationsofOrder. By Ed
WARDALSWORTH Ross, PH.D.
ColonialGovernment. By PAULS. REINSCH,PH.D., LL.B.,author
of“ World Politics," etc.
Democracy and Social Ethics. By JANE ADDAMS, head of“ Hull
House." Chicago.
Municipal Engineering and Sanitation. By M. N. BAKER,PH.B.,
AssociateEditorof" EngineeringNews."
American MunicipalProgress. ByCHARLES ZUEBLIN, B.D.,Asso
ciate Professorof SociologyintheUniversityof Chicago.
Irrigation Institutions. By Elwood MEAD, C.E., M.S., Chief of
Irrigation Investigations, Departmentof Agriculture.
Rallway Legislation in theUnitedStates. ByBALTHASAR H.
MEYER,PH.D.,Professorof PoliticalEconomy.Univ.ofWisconsin.
Studles to the Evolution of IndustrialSociety. By RICHARD T.
ELY,Ph.D., LL.D.,authorof“Monopoliesand Trusts,” etc.
TheAmericanCity: AProblemla Democracy. By Delos F.Wil
cox,Ph.D., authorof" A StudyofCityGovernment."
Money: AStudyofthe TheoryoftheMedium of Exchange. By
DAVID KINLEY, Ph.D., Professor of Economics and Deanof the
Collegeof Literatureand ArtsintheUniversityofIllinois.
TheFoundationsof Sociology, By EDWARD ALSWORTH Ross,
Ph.D.,authorof"Social Control,” etc.
The ElementsofSociology. By FRANK W. BLACKMAR, PH.D..
Professorof Sociology andEconomicsinthe UniversityofKansas
Colonlal Administration. By Paul S.Reinsch,Ph.D., LL.B.'
authorof" ColonialGovernment,” “ World Politics,"etc.
An lotroduction to the Study of Agricultural Economics. By
HENRY C.TAYLOR, M.S.AGR.,Ph.D., AssistantProfessor ofPoliti.
calEconomyintheUniversityofWisconsin.
SomeEthicalGalasthrough Ledlslation .ByFLORENCE KELLEY,
Secretaryofthe NationalConsumers'League, New York.
THE MACMILLAN COMPANY
64-66 FIFTH AVENUE, N E W YORK

T H E C I T I Z E N ' S L I B R A R Y OF
POLITICS, A N D

ECONOMICS,

SOCIOLOGY

SOME ETAICAL GAINS THROUOB LEOISLATION. By FLORENCEKELLEY
SecretaryoftheNational Consumers'League, NewYork.
Itisproposedtodiscussineachofthefourdivisionsofthisbookthn
gain arising from the legislation already achieved inthe direction of
recognizingandestablishingtheparticularrightnamedinthetitle; and
alsothegainremainingtobeachieved-ourAmericanlegislationbeing
perhaps distinguished chiefly by itslackofuniformity. The maindi.
visionsof the bookwill be:(1) The RighttoChildhood,(a) The Right
toLeisure,(3) The Purchaser's Rightto Knowledge.(4) The Rightof
WomentoVote.

IN PREPARATION FOR EARLY ISSUE
NEWER IDEALS OF PEACE. By JANEADDAMS,of Hull House, Chicago
authorof" Democracyand Social Ethics.”
Miss Jane Addams has donea greatworkat Hull House; buther
interests and her influence extend beyond the bounds ofthat model
socialsettlement. The problems ofdemocracyandofsociety atlarge
haveengagedherattention,andhavebroughtfromheressays,lectures,
andotherworksinwhichreaders and hearershave foundsoundideas,
wise suggestions,andstimulatingviews-allsetforthwithunfailingad.
herencetothehighestideals. Thepresentvolumegives expressionto
theripestandmostmatureresultsofherobservationsandstudies.
CUSTOM AND COMPETITION. By RICHARD T. ELY, Pæ.D., LL.D.,
authorof" OutlinesofEconomics," " Monopoliesand Trusts,” etc.
BRITISH CITIES AND THEIR PROBLEMS. By Milo Roy MALTBIE,
PA.D.
INTRODUCTION TO SOCIAL THEORY. By GEORGE E.VINCENT, PH.D.,
and RALPIG.KIMBLE,PR.D.

THE

MACMILLAN COMPANY
64-66 FIFTH AVENUE
N E W YORK