Chapter IV · JUDICIAL INTERPRETATION OF THE RIGHT TO LEISURE

The 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 many 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 government printing office;

Statutes restricting the hours of labor of women and children;

Statutes which are now 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 of the 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 establishing the right to leisure, it is, therefore, necessary to consider the leading cases which determine the line of progress.⁠[6] Two cases decided by state courts of last resort are still effective in preventing the enjoyment of the right to leisure by wage-earners in those states, although the Supreme Court of the United States has, in regard to the subject matter of each decision, subsequently pronounced in favor of the constitutionality of the statutory right; and it is, therefore, reasonable to believe 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, March 5, 1895), and the People vs. the Orange County Road Construction Company (April 25, 1903, Court of Appeals of New York).

The Right to 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 many 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 employees themselves or of men engaged in the same or kindred work.

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 women and children. The moderate hours of work doubtless explain, in part at least, the eagerness of men to secure public employment, even where defective civil service laws make promotion excessively difficult and give the public servant scant hope of any considerable increase in his remuneration.

Convinced of the advantage derived by men in the direct employ of the various governments, federal, state and municipal, from the short working day prescribed by law, many 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 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 statutes would establish the usage of the shorter working day to an extent and in directions little foreseen by those who are not personally interested in the subject.

The unimagined ramifications of the work of the United States Government done under contract may be indicated by the fact that the writer has seen letter pouches, for the use of the United States railway 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 New York. The government contract had been awarded to a manufacturer who 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 how far reaching, in its potential beneficent effects, is the effort of the workingmen to secure statutory provision that, in all contracts for government work, the right to leisure shall be recognized by a stipulation binding the contractor to the working day of eight hours.

The effort thus to secure statutory recognition of their right to daily leisure when employed indirectly by the government through contractors, is made as vigorously by men in industries in which trade agreements are available as in other trades. From their long, persistent effort for this legislation, it appears that they recognize the desirability of statutory 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 may seem to be self-stultification. But viewed as an effort to establish a legal claim to a settled modicum of daily leisure, it becomes at least intelligible. There may 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 who 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 to bargain away what he regards as an undue share of his twenty-four hours, and experience 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 insistent; and every year the industrial territory involved in such contracts enlarges its boundaries and becomes more important. The recent irrigation undertakings of the 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 indirect 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 counties and municipalities within its borders, whether the work be done directly, or indirectly through contractors.

When 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 many years has been presented to it at every session, providing for similar protection for workingmen in the employ of contractors working for the federal government.

The Right to Leisure of Wage-Earning Women and Children.—While striving to establish for themselves the right to daily leisure by trade agreements and by statutes, the wage-earning voters have never relaxed their efforts to establish the same right for women and children in the employ of private individuals and corporations. And in this effort they have found it easier to use legislative methods, because the courts have been, on the 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 women and children, while enacted in the interest of health and morality, have often been urged by persons animated by two other motives as well. In many cases, men who saw their own occupations threatened by unwelcome competitors, demanded restrictions upon the hours of work of those competitors for the purpose of rendering women less desirable as employees. In other cases, men who wished reduced hours of work for themselves, which the courts denied them, obtained the desired statutory reduction by the indirect method of restrictions upon the hours of labor of the women and children whose work interlocked with their own. But whatever the motive of the enactment, the real gain has always been leisure for all concerned; and the advantages to employers derivable from the work of women and children have regularly outweighed any inconvenience arising from the shortened working week.

Before 1889 the effort for the enactment of statutes regulating the hours of labor of women was confined to the trade unions, who had struggles of their own, to protect their own interests, and who can scarcely be blamed if they fought the battles for leisure for women and children first and most effectively in fields of industry where they themselves reaped rewards from their occasional successes, i. e., in occupations in which the work of women and children interlocked with their own.

The sum 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, Colorado, Montana, Illinois and Vermont; to nine in one day and fifty-four in one week in New York and Delaware and to ten in one day and fifty-five in one week in New Jersey; yet for girls between the ages of sixteen and twenty-four years whose numbers 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 important as to nullify the intent of the law in many cases.

Obviously most progress in establishing the right to leisure has been made by men who 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 wholesome distribution of free time, it is clear that gains have been made, hitherto, according to the power of the working people to assert their right. How else can we account for the fact that children of ten years of age still work eleven hours a day in the cotton mills of Georgia? The reason for their overwork is obviously to be sought in their powerlessness to organize for their own defense, in the weakness of the organizations of men in industries in which women 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 own, 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 Massachusetts 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 men working under trade agreements; or because statutes have been enacted for their benefit and the organization of men 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 philanthropic bodies, such as the Consumers’ League and the various child-labor committees and working-women’s societies, through which the public at large intervene in the interest of health and morality.

Taken altogether, the progress made on behalf of women and children, so slight, and so diverse in the different states, indicates how discouragingly far the right to leisure still is from any universal recognition, and how 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 wage-earning women and children, enacted a statute prohibiting the employment of women and children in manufacture longer than ten hours in one day and sixty hours in one week, and made provision for inspectors 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 Company (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 women employed in factories, under the terms of Chapter II, Section iv, of the constitution of Massachusetts: “Full power and authority are hereby given to the said General Court, from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, ordinances, statutes, directions, and instructions, either with or 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.”

Many states have since followed the example of Massachusetts, but none has gone beyond it. Indeed, so far as is known to the writer, no other state has followed the important improvements incorporated in the Massachusetts statute since its establishment in 1876 by the decision of the Supreme Court. By subsequent amendments the hours of labor of women engaged in manufacture were reduced to fifty-eight in one week, and the same restriction extended, in 1900, to the hours of labor of women engaged in commerce, although an exemption covering the month of December temporarily weakened this extension compared with the protection afforded to women engaged in manufacture. In 1904, however, the exemption covering work in December was repealed, and women now stand on the same footing in regard to daily leisure, whether they are employed in manufacture or in commerce.

New York waited until 1886 before restricting by statute the hours of labor of women and children; and even then provided only for women 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 restriction to women of all ages engaged in manufacture.

The imperfect and unequal recognition of the right to leisure is well illustrated by the present statutory provision of New York. There children under the age of sixteen years cannot legally be employed 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 may work until ten. Women of all ages are nominally prohibited from working longer in manufacture 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 inspectors find the utmost difficulty in proving any given violation of the whole provision. Women employed in commerce enjoy, however, not even this defective statutory provision after reaching the age of twenty-one years. And for girls between the ages of sixteen and twenty-one years it is expressly permitted that they may 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 in manufacture, and children of the same age in commerce; women under the age of twenty-one years in commerce, and women of all ages in manufacture. And each of the two latter classes is subject to exceptions in the statute which very seriously diminish its face value.

The Illinois Decision of 1895; (Ritchie vs. the People.)—In 1893 the legislature of Illinois enacted a statute restricting the work of women and girls engaged in manufacture to eight hours in one day and forty-eight hours in one week, and provided for the enforcement of the law by inspectors whose duty it was to prosecute all violations of the statute. But in May, 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 women in that state. Because it is still in force in Illinois, depriving thousands of women and young girls of all statutory 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 decision, 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 department some comments upon the decision, which have remained buried in the obscurity of an official report. Time has, however, verified in so hope-inspiring a manner some of the statements there made that it seems worth while to reproduce them after the lapse of 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 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, Germany and every other continental country, including Russia, and in the more progressive states of this country, legislative regulation of the hours of labor has been found an effective measure for the protection of the health of women and children employed in factories and workshops. In England, the principle of the regulation of the hours of work for women and children has been established for more than two generations and the regeneration 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 especially 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 advanced and rejected in the English parliament in the fifties.

“The new feature introduced into the body of American legal precedent by this decision is the assumption that it is not exclusively a matter of the constitution of Illinois. The state constitution could be altered, so that thereafter the hours of labor could be regulated by legislative enactment, as 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 Supreme Court that the hours of labor of women and children may be regulated by statute. The Massachusetts precedent has had such weight that no case has been carried to the Court of Appeals in New 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 guaranteeing the negro from oppression, has become an insuperable obstacle to the protection of women and children. Nor is it reasonable to suppose that this 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 between the day of eight hours and the day of ten. In practise the question is between an unlimited working day and a day restricted by statute to a reasonable 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 women and children in the factories and workshops of Illinois.

“When it is remembered that the annual increase in the number of women and girls employed in factories 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 women, of whom more than 7,000 were in sweat-shops, it is clear that the question 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 of American judicial precedents, in opposition to the experience of all civilized countries, and to the injury of the large and growing number of women 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—an agricultural state. What then can be done for the weakest and most defenseless bread-winners in the state?

“The outlook is far from hopeless. Even under the decision as it stands, farther legislative protection for minors is not impossible. As to adults, the court has reversed decisions upon points of far less urgency than this.

“It may be that the court is as advanced as that portion of the community which is not yet thoroughly aware that Illinois is the third great manufacturing state of the Union. When, however, the observations made during a few more years shall have convinced the medical profession, the philanthropists, 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 who 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 Constitution of the United States from the perverted interpretation upon which this decision rests. We may hope that Ritchie vs. the People will then be added to the reversed decisions.”

Despite the suggestion of the court that the hours of labor of minors 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 passage of the first 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 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. And at the present time, both boys and girls over the age of sixteen years have no statutory right to any daily leisure in Illinois, but may 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 New York and Illinois obeyed the law of New York and employed no women or girls after nine o’clock at night in that state, while, under the Illinois decision, they required 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 working-day was either the only point or the principal point at issue. Had the working day of women and girls remained legally determined throughout the period, according to the enlightened intention of the legislature of 1893, it would have been eliminated as a cause of discord in all those cases in which only women and girls were involved and in all those other cases in which the hours of labor of men are determined by the length of the working day of the women and girls whose work interlocks with their own. The number and seriousness of the strikes since 1895, in Illinois, would in all probability have been thus materially diminished, together with the 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 women 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 women and girls have been unlimited, 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 the legislature of that state to eliminate a cause of discord by establishing a statutory right, it seems reasonable to attribute to the court the ultimate responsibility for the lawlessness of men and women who 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 who wrote the Illinois decision is dead. A judicial election has been held and several of his reactionary colleagues have been replaced by men 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.

The Right to Leisure of Workingmen.—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, promulgated February 28, 1898, and commonly known as the Utah Eight Hours Case. This decision confirms the hope that the right to leisure may be established and extended by constitutional methods, legislatures and courts working harmoniously to promote 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 of the United States, this decision opened the way for a peaceful, though slow and laborious evolution of the beneficent powers of the individual states, and for reasonable and wholesome hours of work and of daily leisure. The fact that it immediately 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 rehabilitate 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 abrogated 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 imposed upon all alike; that discrimination must be avoided, not alone because it is unjust, but because it is fatal. Hence legislation regulating the conditions of employment is usually embodied in measures 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 who come under the interstate commerce act receive the benefit of certain safe-guards prescribed by that act.

When, 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 individual states are prohibited from interfering with the hours of labor, commerce and manufacture 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 provision 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 deprived 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 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, much 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 limiting 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, because they violate the right of both parties to make their own 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 constitute a legal day’s work for all classes of mechanics, servants, and laborers throughout the state, excepting those engaged in farming and domestic labor, and making violation of its provisions a misdemeanor, was unconstitutional, and, therefore, void both as special legislation and as attempting to prevent persons legally competent to enter into contracts, from making their own contracts.”

Undeterred by these three recent and discouraging decisions of western courts, the people of Utah fell back upon the precedent of Massachusetts (People vs. Hamilton Manufacturing Company, 1876), affirming that the legislature of Massachusetts had power to restrict by statute the hours of labor of adult women employed in factories. The Illinois court, in its decision annulling the Illinois eight hours law, had taken occasion to refer to the Massachusetts 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.

From the days of the sweeping provision of the constitution of Massachusetts which took effect October, 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 reduce legislative power in the states to zero, degrading the state government to a mere mechanism for laying and collecting taxes for the maintenance of the judiciary, the militia and the state charities, reached its culmination in the Illinois decision referred to. How far the pendulum has swung 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 new constitution of 1896 an article dealing explicitly with the rights of working people, as follows:

“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 women, 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.

“(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 abrogated, and the amount recoverable shall not be subject 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 governments; and the legislature shall pass laws to provide for the health and safety of employees in factories, smelters, and mines.

“Sec. 7. The legislature, by appropriate legislation, shall provide for the enforcement of the provisions 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 follows:

“Section 1. The period of employment of workingmen 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 workingmen 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 life or property is in imminent danger.”

On June 26, 1896, one Holden was arrested under a warrant charging him with employing a man to work in a mine ten hours in one day. The 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 carried to the Supreme Court of the United States, which handed down its decision on February 28, 1898, Justices Peckham 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, it is convincingly laid down by this decision that statutes restricting the hours of labor of employees 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 amendment to the Constitution of the United States.

The decision is so coherent, so closely knit, that injustice is done by quoting isolated parts of it by way 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 may deem best for the public welfare, without bringing them into conflict with the supreme law of the land.” And again the court says: “This court has not failed to recognize 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 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 formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interest, while, upon the other hand, certain classes of persons (particularly those engaged in dangerous or unhealthful employments) have been found to be in need of additional protection.” “While this court has held that the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may 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 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 approval the most advanced position taken by the Supreme Court of Utah, as follows: “Though reasonable doubts may 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 government.”

Having thus come to the rescue of the state legislatures and their powers in general, the court deals with their duties in regard to the health of employees. It sets up the general proposition that, “It is as much for the interest of the state that the public health should be preserved as that life should be made secure.” “In [some] states laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld. Thus, in the case of the Hamilton Manufacturing Company (120 Mass., 283), it was held that a statute prohibiting the employment of all persons under the age of eighteen, and of all women laboring 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, nor any right reserved under the constitution to any individual citizen, and may be maintained as a health or police regulation.”

It is refreshing to find the enlightened Massachusetts 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. The Supreme Court of the United States settles also the vital question: “Who shall decide which occupations are sufficiently injurious to justify the restriction of the hours of daily labor of persons 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 decision: “It [the eight hours section of the state factory law] does not inhibit their [women’s] employment in factories or workshops. On the contrary, it recognizes such places as proper for them to work in by permitting their labor therein during eight hours of each day. The 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 woman to engage in, she shall be deprived of the right to determine for herself how many hours she can and may work during 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 woman can work without injury to her physique, and beyond which, if she work, injury will necessarily follow.”

The court was naturally not in a position to investigate the conditions of work in the factories and workshops of Illinois. That is not its function. But the legislature of 1893, which enacted the statute then under consideration by the court, had been in a position to investigate the conditions of manufacture throughout the state; it had appointed a joint committee of the house and senate to investigate the factories and workshops in operation; this committee had visited a great number of establishments, and had taken a large amount of testimony from employers, employees, physicians, visiting nurses, inspectors and other witnesses, and had decided 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 women could not work without injury. All this no court can do; it has no apparatus for such investigations; but this circumstance did not prevent the Illinois court from usurping the right which the later decision of the Supreme Court of the United States happily reassigns to the legislature.

Touching the powers of the legislatures in the matter of health and the hours of labor, the Supreme Court of the United States says: “These employments, when too long pursued, the legislature has judged to be detrimental 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.”

And elsewhere the Supreme Court of the United States quotes with approval the words of the Utah court: “It may be said that labor in such conditions 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 only be permitted to limit or abridge such a fundamental right as the right to make contracts when the exercise of such power is necessary to promote 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 many 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 much 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 other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority.” “The fact that both parties are of full age and competent to contract, does not necessarily 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, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual 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 engaged in manufacture, enacted in 1893 and pronounced unconstitutional by the state Supreme Court in 1895. It did, however, by citing with disapproval virtually every proposition laid down 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 the Supreme 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 application to women and minors, if they have to do with occupations injurious to the human organism. The miners of Illinois and Pennsylvania might well strive for statutory confirmation of the eight hours day which they now enjoy only under terminable agreements based on arbitration. And women in the cotton mills have only to show that the ever increasing 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 legislative restriction upon their working hours under the reasoning of this admirable decision. To women driving foot-power machines under the 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 investigations by boards of health and bureaus of labor.

The fact that the hours of labor of adult men can be restricted by statute only in occupations proven injurious to the health, is emphasized anew by the decision of the Supreme Court of the United States in the case of Lochner vs. New York,⁠[7] 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 who are engaged in that occupation. 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 the hours of labor does not come within the police powers on that ground.... The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid.... We think 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 may be true that the trade of a baker does not appear to be as healthy as some other trades, but it is also vastly more healthy than still others. To the common understanding, the trade of a baker has never been regarded as an unhealthy one.”

In New 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 women 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 women engaged in manufacture.

The Supreme Courts of Nebraska⁠[8] and Washington⁠[9] have sustained statutes modeled on those of Massachusetts for the protection of women 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 unconstitutional by a court of last resort.

In Missouri,⁠[10] the provisions of the Utah law restricting to eight hours the work of miners, adopted by the legislature and sustained by the Supreme Court of Missouri, are now in force.

It has been related that the legislature of Colorado inquired of the Supreme Court of that state whether the provisions of the Utah law would be constitutional if enacted in Colorado, and was assured 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 pronounced unconstitutional.⁠[11] The people of Colorado 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 had been pronounced constitutional by the Supreme Court in the case of Holden vs. Hardy. This the legislature of Colorado has hitherto failed to do.

The history of Colorado repeats in a spectacular manner the experience of Illinois. Statutory recognition of the right to leisure being denied, working people have striven to attain by strikes what they had failed to obtain by statute. The lawlessness which has disgraced Colorado, like the lawlessness 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 Colorado, the legislature. In both states the harm done is irreparable. Lives have been sacrificed; violence has taken the place of civic order; the public conscience 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 officials 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 salutary opportunity for rest, recreation, education, family life and self-help by means of savings societies and all those agencies administered by working people themselves which depend for their success upon the regular attention of persons free from over-fatigue and irregular pressure.

It is conceded that the right to leisure may be established by statute for children and minors in all states and in all industries; for women in some states in all industries; for both men and women in industries dangerous to the health; and, finally, for employees of the federal, state and municipal governments. 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.

Were statutes establishing the right to leisure already enacted and in force in accordance with the principles clearly laid down by the Supreme Court of the United States, the multitude of men, women 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 and threat of strikes to secure enforcement.

The immediate, practical lessons derivable from this weighty decision, for all those who believe that the right to leisure should be established by constitutional methods, 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 may be established by statute in the various states for all those occupations which are in themselves obviously injurious to the health of employees, and it rests with the state legislatures to decide which are such occupations.

3. Legislation limiting the hours of labor of employees need not be restricted to women 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, a 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, discouragement, 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 sustaining a statute affecting a few hundred men in a state not highly developed industrially and by affording a precedent national in its scope, whereby may be done over again successfully work which, in several states, had once been done in vain. Yet it assures 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 when authorized to do so; state Supreme Courts brought to follow the precedent set by the Supreme Court of the United States. Years must be consumed in the work of education and legislation before the full fruits of this enlightened judicial interpretation 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 it costs.

Trade Agreements and Statutes.—It is 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 provisions. 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 way rests upon no acknowledged legal right; it is gained by struggle and rests upon the power of the organizations on both sides to maintain the terms of an agreement, enforcing them by strike or lockout; it is never final, but always subject to cessation at the termination of the agreement; its existence for however long a time establishes no legal right; at best it creates only a valuable 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 women, children, and unskilled or feeble men 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 involves not only skill in setting type but strength to lift forms), the pilots of the ocean harbors and the great lakes, certain branches of mining and ore reduction, and the building trades, with some branches of manufacture. The nature of the work selects men of certain qualifications, bodily, mental and industrial, in all these cases; and such men 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 New York City.

For children and young girls, leisure assured by means of trade agreements of their own is unthinkable. Such workers can derive it by this method only indirectly and under exceptional circumstances, as when a trivial minority of them are engaged at work which interlocks with the work of men employed 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 own terms any organization of employers. Indeed, for many years the men 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 remain 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 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 may be, injurious to the health. In the case of non-injurious occupations leisure for men will have to be obtained and maintained through trade agreements.

The right to leisure, deeply felt by working people to be a human 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 contention. When, therefore, the Supreme Court of the United States limits the power of the states to restrict the hours of work of adult citizens, to occupations injurious to the health, it thereby relegates to the trade organizations and their trade agreements the task of maintaining, as a human right, by militant exertions, that leisure which it fails to assure to a very large class of voters.

Strikes on the largest scale, in which the establishment 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 devolving upon trade agreements, in the case of adult male employees not engaged under contract by any government and not engaged in an injurious employment, the function performed by statutory provisions in the case of other large classes of working-people. In the occupations thus outlawed, the result of the outlawry is the recourse to extra-legal means of asserting the human 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 employees. Workingmen 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 human right in process of recognition as a statutory right. Wherever it is established, the objects of struggle between employers and employees are in so far reduced. Where, on the other hand, courts have held that the right cannot be recognized and established by statute, a ground of incessant contention is set up. In such communities, peace may be enjoyed by the public when, in a given trade, the inequality between the parties is such as renders a demand for regular leisure utterly hopeless, as in the sweated-trades or trades in which children and women are present in large numbers, e. g., the Southern cotton mills. Or peace may temporarily exist when both parties are so equally powerful that both fear warfare, and both profit by truce. This peace, however, is always in danger of coming to an abrupt end by the introduction of some new machine, or by the immigration of some new and especially adaptable body of laborers.

Critics of the effort to establish by statute the right to leisure may contend that the process is an intolerably slow one, that a statute, also, is liable to termination by repeal, is as little stable and permanent as a trade agreement and may prove excessively 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 may fail to do so, as has been shown by recent events in Colorado. Or, a legislature may enact measures which are illusory for want of penalties, or by reason of exceptions such as that which weakens the restriction upon the hours of labor of women in New York. Or there may 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 New York City, where the Retail Dealers’ Association succeeded in 1898, and each subsequent year, in having stricken from the municipal budget all appropriation for the salaries of mercantile inspectors. Or, effective officers may be removed and incompetents appointed in their places, as has happened in many states.

Moreover, vigilance is needed even where workable 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 Law” in New Jersey, which had remained unaltered upon the statute books from 1892 to 1903. This statute provided that women 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 women employed in industries in which men maintained powerful organizations and insisted upon compliance with the letter of the law, thus facilitating their own 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 passengers, have in some cases been so defiantly and persistently violated by companies (holders of charters and franchises) as to drive the employees into striking in order to enforce the obedience of their employers to the terms of the law, when recourse to the courts seemed to the workers not certain to bring forth a decision sustaining the 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 obstacles to be encountered in making progress and in maintaining it when made, it nevertheless remains true that it is more dignified for the working people and infinitely more wholesome for the community to be enlisted in behalf of the enactment and enforcement of the law, than engaged in striving to establish and maintain a right without recourse to the law.

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