THE RIGHTS OF PURCHASERS, AND THE COURTS
The more closely the rights of purchasers are scrutinized, the more
clearly it appears that they are social rights. However much they may
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 infection
when bought of reputable dealers at the price asked; and, finally and
most important, to be free from participating indirectly, through the
purchase 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
adulterated foods, and the consciences of the wage-earners cleansed
of the degradation implied in preparing impure foods for the market.
In the process, honesty must be forced upon the poisoners (by means of
adulterations in food and germs in apparel) who now thrive upon the
ignorance and credulity of the buying public.
Before the individual purchaser can vindicate his own personal rights,
the whole body of purchasers are constrained to save childhood for
the children, and home life for the workers who dwell in tenements.
The garret of the humblest widow must be safe from invasion by the
materials and the processes of industry. The childhood of the dullest
orphan 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 meanest 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 competition, the highest ethical level
possible to our social life can be reached only through legislation in
this, its highest and finest sense.
=The New York 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 own exclusive interests,
through the enactment of a measure prohibiting the manufacture of
cigars and the manipulation of tobacco in tenement houses in the state
of New York. In 1884, when this effort was made, tenement-manufacture
was of relatively slight extent compared with its subsequent
development, and was confined almost exclusively to the materials
mentioned. The sweating system, as we know 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 cigarmakers the
inclusion of the needle-trade workers in the struggle for the statutory
prohibition of work in the tenements.
When the law prohibiting the manufacture of cigars and the manipulation
of tobacco in the tenements had been in force less than a year it was
pronounced unconstitutional by the Court of Appeals, in the decision of
the case of in re Jacobs.[14]
Had that earliest statute been sustained by the Court of Appeals of
New 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, applying only to those
tenement-dwellers who 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 and
social character as to deserve careful consideration.
The framers of the law described it in its title as “An Act to Improve
the Public Health,” by prohibiting 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 point the 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 enormously, has
produced disease unceasingly by overcrowding not merely individual
tenements, but whole districts of every city in which it has 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 settlements in districts in which the
sweated industries are carried on, all testify to the impossibility
of preventing 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 was the present
body of evidence as to the close connection of the diseases of the
tenement-dwellers with epidemics in remote parts of the country, whose
inhabitants wear tenement-made garments, then available.
A startling proposition contained in the decision in re Jacobs is that
the health of the employees is not the public health! “What possible
relation can cigarmaking in any building have to the health of the
general public?” asked the Court of Appeals of New York in 1885.
It is not long since a visiting nurse among the tenements of New York
City found a dying consumptive 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 cynical question. During the intervening twenty years the fact
has been imprinted upon the public mind that the whole system of
manufacture in the tenements does involve a degree of danger to the
public health such that it is 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 now needful to prove that the health of the workers is an
important part of 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 New 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._ New York in 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 may be injurious to
some persons, or that its manipulation may be injurious to those who
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 may be restricted by
statute.
Because it was class legislation, by reason of confining its
prohibition to workers in tobacco, and because it was not, in the
opinion of the Court of Appeals, sufficiently obviously a measure for
the improvement of the public health, the court pronounced the law
prohibiting the manufacture of tobacco in tenements unconstitutional
and void, alleging that it deprived the cigarmakers of “some portion of
their personal liberty.”
But, in sustaining his “right to live in his own house, or to work at
any lawful trade therein,”--a right of which the tenement-dwellers
had laboriously 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
manufacturers 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 invasion 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 workingman who 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.
=The Development and Regulation of the Sweating System.=--This
inference the tenement-house workers drew without loss of time. They
abandoned all effort to secure sweeping prohibitions, 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. Work upon certain specified articles in kitchens and
bedrooms was prohibited to all persons not members of the family.
Although a man could not be shielded from the invasion of his dwelling
by the materials of his industry, he could at least be spared the
presence of strange men and women. An immediate consequence 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 custom
of sending the handwork into the dwellings. The list of articles thus
kept sacred to the family, short at first, grew from year to year, and
now 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 denying to the purchasers
and the workers the protection 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 confusion mixed with
contempt for the law. For, where a sweeping prohibition would have been
logical and relatively easy to enforce, the petty, teasing restrictions
enacted piecemeal have been fruitful of the spirit of evasion. When 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. And it never has been obeyed;
nor is there any prospect, even in its present amended form, that it
will be 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 who worked at any process of manufacture of some
thirty articles, in any tenement 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 woman walking along Mulberry street, New
York, carrying a huge bundle of knee pants on her head. The burden
bearer mounted to the fifth floor of an Italian tenement and threw her
bundle down upon a singularly greasy kitchen table. Asked to show her
license to work, she brought out, with the friendly smile and courteous
manner of the Sicilian peasant woman, a letter from the New York State
Department of Labor, dated some seven weeks before, notifying her that
her premises were 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-woman, unable to read in any language,
but reassured by the seal of the state of New York on the envelope, had
assumed that this was the license for which she had been told to apply,
and had worked away happy in the consciousness of having obeyed the law.
The only gain to any part of the community derived from the licensing
law during the five years in which it retained its original form,
was the discovery 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 undesirable streets of New 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 alike been burdened with the despairing
duty of performing 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, instead of insisting, as it is clearly his
duty to do, upon wages enough to maintain his family. It means boys
and girls of ten years kept at home from school, in violation of the
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 man, woman 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 down of the factory for want of orders.
Tenement work means steady downward pressure upon the wages of the
factory workers, to whom it can always be said: “If you do not like our
terms in the factory, we can send the work into the homes.” Tenement
work means the unavoidable spreading of disease and the frequent
breaking out of epidemics, not only in the cities where it is carried
on, but in all those distant places to which the product may be sent.
In the effort to minimize the inevitable consequences 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 gathering the tax upon tobacco.
Because the personal liberty of a workingman would be interfered with,
if his employer were prohibited from requiring him to work at home, the
unhappy dwellers in the tenements have seen their homes invaded by all
manner of materials, from tobacco leaves and stems, to the bales of
paper and tubs of paste required 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 “personal liberty” these
victims of the sweating manufacturers have been constrained to live
within walking distance of their employer’s place of business, for
the burden-bearer between the merchant tailor and his home-worker is
usually a woman or a child, reduced by the smallness of the pay to
saving car-fare by living near the “shop.” Instead of able-bodied men
and girls of the family, walking empty handed to and from their work,
or riding perhaps to a desirable suburb by trolley, the burden-bearing
woman or child has determined the distance to be traversed. Thus
the tenement house problem has been artificially intensified and
complicated; and by reason of the unlimited competition of the women of
the tenements, wages have been kept 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 such as 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 who may be coming down
with diphtheria, or shedding rags and patches of their skin after light
cases of scarlet fever.
=Trade Unions and the Union Label.=--The decision of the Court of
Appeals in re Jacobs virtually turned over to the wage-earners the task
of providing, through the machinery of their organizations, for the
protection of themselves and the purchasers 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 recognized as
benefactions to the whole people; so they now invented that method of
dealing with the sweated trades, by offering the label as a guaranty
of conditions approved by the workers which is accepted as the best
available under the circumstances, and in view of the conditions
imposed by the decision of the Court of Appeals in re Jacobs. It is,
of course, out of their power ever to do, with palliatives, what a
sweeping prohibition could have done long since.
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. Or, if a union were not only insufficiently
strong but imperfectly honest as well, the public would pay the penalty
for every label dishonestly sold to contractors for use in places which
fell below the accepted standard of wholesome and clean conditions.
Or, let us suppose that a portion of the public may be honestly opposed
on principle to the maintenance of trade unions; and unwilling,
therefore, to purchase goods guaranteed by the union label. Such
abstainers, if left without other means of discrimination in favor
of goods made under wholesome conditions, are in danger, not only of
incurring disease and death, but of disseminating them throughout the
community.
Finally, a large part of the membership of the unions in the garment
trades consists of immigrants so recently arrived from Eastern Europe
as to have no adequate standards of wholesome conditions for home and
workshop, of persons wholly unprepared to defend their own health, much
more that of the general public. Clearly the unions, however valuable
to their members and to the community 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 performing a task of protection of the public health
which should never have been asked of any voluntary organization,
they have been vastly strengthened by the effort to do this. Baffled
in the endeavor to do away with tenement work by law, they turned
to the development of their label, advertising it, obtaining legal
guarantees against infringement, and publishing all the abhorrent facts
connected with the sweating system and attached, inferentially, to the
goods which bore no label. Their label, whether or not it has always
guaranteed satisfactory cleanliness and the absence of disease from the
workroom, has announced 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 industries the manufacturers pay for the label
a price which covers the cost of advertising on a large scale.
Since goods bearing the trade union label commonly cost somewhat more
than other goods, the workingmen who take the trouble to pay the price
required are stimulated to look sharply after the integrity of the
union which offers a label.
What, now, is the position of that portion of the public which
disapproves of the union and repudiates 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 among the organizations of labor. While labels may be found
in many cities by seekers after men’s hats and shoes, outer-wear,
neckties, gloves, shirts, etc., none is discernible for woven
underwear, on which much handwork is regularly done in homes; while for
women the union label is scarcely upon the market outside of the shoe
trade.
In the manufacture of garments and apparel of all kinds for women, the
workers are chiefly young girls and women who have, hitherto, formed
no stable union; who have no funds for advertising on a large scale,
and no real power of enforcing any provisions for their own protection
or that of the public, which has for twenty years left to them this
impossible task.
A community which turns over to the working-women the task of
assuring to it clean and wholesome workrooms in the tenements, for the
production of its wearing apparel, gets exactly what it deserves,--the
sweating system upon the largest scale that the world has ever seen.
After the state of New York shall have arrived at some method of
doing away with tenement manufacture and sweating, after these twin
iniquities shall have been effectually abolished, the trade unions will
resume their normal function of guaranteeing to purchasers who 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 imposed 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
discredit 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 manufacture, pursued side by side. The state,
by statute, legalizes the manufacture in the tenements of thirty-four
articles, and proceeds by a cumbersome threefold inspection (by the
State Factory Inspectors, the Board of Health Inspectors and the
Tenement House Department), to minimize the danger to the public
health, including that of the workers themselves. But, as has been
pointed out, the public health is not really safeguarded. The people
are merely lulled into a false sense of security.
The unions, meanwhile, have spent untold thousands of dollars in their
effort to induce the purchasing public to avoid the dangers attending
sweated goods, by the individual method of discrimination against
tenement made products and in favor of goods guaranteed by the union
label.
=Ethical Loss Through Lack of Legislation.=--The ethical loss by reason
of this decision of the Court of Appeals of New York, quite apart from
the loss of money in advertising by the unions and in futile, hopeless
inspection on the part of the state, is quite beyond the possibility of
calculation.
From 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 New York has proclaimed through its
highest court that it cannot protect 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 nationally, and are foisted upon the meager
dwellings of the poor solely for the purpose of saving to the employers
the cost of heat, light, cleaning and, far more important, rent of
workrooms. For the convenience of the powerful, the weakest industrial
factors in the community, the widows burdened with young children, the
daughters kept at home by bedridden 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 who 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 women who have dependent members of the
family.
Meanwhile, the manufacturer or the merchant tailor, the owner of the
goods, bears no responsibility towards the community, beyond the
requirements that he must file with the factory inspectors, when so
requested, a correct list, in the English language, 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 may be necessary to provide--by way
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 whom his goods are
entrusted. This would be less than the manufacturer’s equitable share
of the burden which he inflicts upon society. Since it is for his own
convenience 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 of premises and of goods which have been
exposed to infection, prosecution of offenders, etc.
The arguments 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
home life, their relation to their industry, and to the life of the
community of which they form a part.
The fact that the cigar workers obtained the passage of the law
prohibiting the manufacture of cigars and tobacco in the tenements,
sufficiently indicates their position on the subject. All the
restrictions 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 may 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 who the tenement-house workers are. They are,
first, the able-bodied men 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 to have the work done
in a factory or a workshop. What possible advantage is gained for these
men 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 disadvantages of losing contact with the
English speaking employers and fellow workers in the factory 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 them; and they work until the task is
accomplished. For them there is no opening hour, no closing time. When
work is done, they cease to drive the machine, 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 who 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 wrapping 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 children, the daughters with
bedridden old fathers or mothers,--the women who cannot leave home to
work. For these persons, work in the home is an evil and an evil only.
Not one of them can really support herself while doing the housework
and caring for her dependents, and the community which requires that a
woman so placed shall go through the forms of work for self-support,
deserves all the punishment that it receives in the form of transmitted
disease. All such women 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 who are dependent upon them. In the
long run, the community pays many 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 men in the trades afflicted with tenement work have always
maintained that, if they could be freed from their slavery to their
kitchens and bedrooms, and enabled to work in suitable workshops,
they could then organize their trade in such ways as to command
wages sufficient to support their families, including their sick and
dependent relatives. It is only necessary to know somewhat intimately
two brothers, one a tailor working at home and the other a printer
working in a shop, to be persuaded of the truth of this contention. For
the skill required 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 utilization of the ill-paid labor
of women 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 reason of their poverty and the
degradation of this great trade. This is, however, the exact reverse of
the truth. The cheapness of our garments is attained 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 revolutionized in the direction of cheapness within
the memory 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 corporations 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, by its own greed
for bargains, has willingly believed that in this one set of trades
alone primitive machines and petty shops maintaining a multitude of
middlemen were really cheaper in the end (because they employ the worst
paid women 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 intelligence.
It has become an axiom in political economy that high-priced labor
stimulates the application of machinery. On the other hand, the
presence in the tenements of girls who sew on buttons and run errands
for wages ranging from thirty cents to seventy cents a week, and of
women who 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 much to say that the thousands of women
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 himself to the tailor who sews in a
tenement-house kitchen or bedroom. The wholesaler or the merchant
tailor farther avoids the risk attendant upon maintaining a plant
equipped with steam or electricity 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 women and girls in the tenements and
simplifying it to the utmost extreme, so that skill in the worker is
reduced to the last degree, and wages follow skill in the direction
of zero. Hence we find in the tenements “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 ruinous to themselves at present and to their
children in the future. The foul, ill-ventilated, often damp shops,
the excessive speed and intensity of the work, the ceaseless exertion
of the limbs throughout interminable days, and the grinding poverty
of these workers combine to render consumption the characteristic
disease of these trades. The very youth of the workers increases their
susceptibility to injury and disease. Young 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 continuance.
All this wretchedness, attending this belated survival 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 garment trades shall be
placed upon the factory level.
This change, however, cannot reasonably be expected of the corporations
which control the garment 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 tenement-made garments, and
embodying its will in prohibitory legislation carried much farther than
the tentative measures of regulation now 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 men, women
and children who work in tenement rooms.
To the decision of the Court of Appeals of New 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 New York.
Among the consequences and the accompaniments of the system are
congestion of the population in the tenement districts; the ruin of
home life in the dwellings used as workrooms; child labor in the homes;
endemic disease (especially tuberculosis) 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 overwork followed by the anxiety of a prolonged
period of unemployment; and suicide, the self-inflicted death of a
garment-worker being of almost daily occurrence in New 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 it is 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 new
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 manufacture is no longer tenable in the presence
of the decisions of the Supreme Court of the United States in the
cases of Holden _vs._ Hardy and Lochner _vs._ New York. To assure
the abandonment of this obsolete position, however, public opinion,
including the courts, must be effectively enlightened upon every aspect
of tenement-house manufacture.
In the case in re Jacobs, the Court of Appeals of New 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
investigating the conditions of industry. But the legislature, through
its investigating committees, possesses all the needful apparatus for
investigation. When the court sets up its non-acquaintance with the
existing conditions as a reason for over-riding the action of the
legislature, the purchasing public is left with no redress and no clear
line of action marked out for the future.
How can the courts be enlightened and instructed concerning conditions
as they exist? This is the burning question which confronts both the
purchasers 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. How 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?
The decisions in the cases in re Jacobs, Ritchie _vs._ the People,
and Lochner _vs._ New York indicate that a satisfactory reply to this
question is a prerequisite to farther ethical gains in wide industrial
fields by means of legislation.
FOOTNOTES:
[14] See Appendix IV.
APPENDIX I
CANTON COTTON MILLS _vs._ EDWARDS
(Supreme Court of Georgia. June 10, 1904.)
INFANTS--CAPACITY--INJURY TO EMPLOYEE--PETITION
Wylie Edwards, by his next friend, brought suit against the Canton
Cotton Mills for personal injuries, alleging that on February 10, 1902,
the plaintiff, being a child ten years old, was employed to sweep
floors and 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 was necessary
to pass a machine called a “finisher.” That he stopped to observe the
lap of cotton as it came out of the machine onto the roll. Boylike, and
with no knowledge of the danger, he laid his hand on the roll, as he
had seen the man in charge of the machine do, when, in some way unknown
to the plaintiff, his hand was caught and drawn between the rolls,
to his great damage. That plaintiff was not aware of the dangerous
character of the machine, 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 capable of appreciating and guarding
against such dangers; nor was he capable of understanding, remembering
and acting upon warnings that might have been given by defendant; and
of all this defendant had full knowledge. That defendant was negligent,
in that it retained in its employment, and required to be in its mills
among its machinery, a child too young to realize and guard against
a danger, and too young to appreciate and act upon any warning, and
too young to work in such a place. That it was negligent in failing
to 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 about a 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
own 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 it bound 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 company excepted.
LAMAR, 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. In some children the mind
outruns the body, and in others the body outgrows the mind. Some are
weak and undeveloped at the age of fourteen, and others are strong
and vigorous at ten. Some at an early age can hunt, drive, ride,
swim and work in many 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; applying the principle involved in Civ.
Code 1895, § 2901, which declares that “due care in a child of tender
years is such care as its capacity, mental and physical, fits it for
exercising 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 of the machine and of the
danger of working therewith as he had seen others do; that he had not
been warned; that he was incapable of appreciating, 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 demurrer. Compare Evans _vs._ Josephine Mills, 119 Ga. 448, 46 S.
E. 674.
Judgment affirmed. All the justices concurring.
APPENDIX II
RITCHIE _vs._ THE PEOPLE
(Supreme Court of Illinois. March 14, 1895.)
CONSTITUTIONAL LAW--SUBJECT EXPRESSED IN TITLE--DUE PROCESS OF
LAW--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 any one week,” is unconstitutional, as depriving
persons 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. Upon complaint of the factory inspector appointed under
the law hereinafter named, a warrant was issued by a justice of
the peace of Cook county against plaintiff in error, and upon his
appearance, and waiver in writing of jury trial, a trial was had,
resulting in a finding of guilty, and the imposition of a fine of five
dollars and costs. The complaint charged that on a certain day in
February, 1894, plaintiff in error employed a certain adult female of
the 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
reviewing such judgment of the criminal court.
Upon 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
legislature of Illinois entitled “An act to regulate the manufacture
of clothing, wearing apparel, and other articles in this state, and to
provide for the appointment of state inspectors to enforce the same,
and to make an appropriation therefor,” approved June 17, 1893 (Laws
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: “No female shall be employed in any factory or workshop more
than eight hours in any one day or forty-eight hours in any one week.”
“Factory” or “workshop” is defined in section 7 of the act as follows:
“The words ‘manufacturing establishment,’ ‘factory’ or ‘workshop,’
wherever used in this act, shall be construed to mean any place where
goods 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: “Any person, firm or corporation, who 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 unwarranted
restrictions upon the right to contract. On the other hand, it is
claimed by counsel for the people that the section is a sanitary
provision, and justifiable as an exercise of the police power of the
state. Does the provision in question restrict the right to contract?
The words, “no female shall be employed,” import action on the part of
two persons. There must be a person who does the act of employing and
a person who consents to the act of being employed. Webster defines
“employment” as not only “the act of employing,” but also “the state of
being employed.” 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, second, that no female shall consent to be so employed. It thus
prohibits employer and employee from uniting their minds or agreeing
upon any longer 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 employed, 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 direction 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 employee 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 2 of article 2 of
the constitution of Illinois provides that “no 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
occasion to consider this provision, or one similar to it, and its
meaning has been quite clearly defined. The privilege of contracting
is both a liberty and property right. Liberty includes the right
to acquire property, 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 protected 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 property owner. In
this country the legislature has no power to prevent persons who are
_sui juris_ from making their own contracts, nor can it interfere with
the freedom of contract between the workman and the employer. The right
to labor or employ labor, and make contracts in respect thereto upon
such terms as may be agreed upon between the parties, is included in
the constitutional guaranty above quoted. The protection of property is
one of the objects for which free governments are instituted among men.
Const. Ill. Art. 2, § 1. The right to acquire, possess, and protect
property includes the right to make reasonable contracts; and when an
owner is deprived of one of the attributes of property, like the right
to make contracts, he is deprived of his 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 principal or primary
articles, “the right of personal security, the right of personal
liberty, and the right of private property.” The right to contract is
the only way by which a person can rightfully acquire property by his
own labor. “Of all the rights of persons it is the most essential to
human happiness.” This right to contract, which is thus included in
the fundamental rights of liberty and property, cannot be taken away
“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, inherent in every Englishman, is
that of property, which consists in the free use, enjoyment and
disposal of all his acquisitions, without any control or diminution,
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
circumstances, and not partial or private laws, affecting the rights
of private individuals, or classes of individuals.” 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 man who 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 man 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 extent 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 legislature to single out owners and
employers of a particular class, and provide that they shall bear
burdens not imposed on other owners of property or employers of labor,
and prohibit them from making contracts which other owners or employers
are permitted to make.
We are not unmindful that the right to contract may be subject to
limitations growing out of the 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 own 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
legislature to thus limit the right to contract must rest upon some
reasonable basis, and cannot be arbitrarily exercised. It has been
said that such power is based in every case on some condition, and not
on the absolute right to control. Where legislative enactments, which
operate upon classes of individuals only, have been held to be valid,
it has been where the classification was reasonable and not arbitrary.
Applying these principles to the consideration of section 5, we are
led irresistibly to the conclusion that it is an unconstitutional and
void enactment. While some of the language of the act is broad enough
to embrace within its terms the manufacture of all kinds of goods 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 entitled “An act to regulate the
manufacture of clothing, wearing apparel and other articles,” etc.
Under the rule of construction heretofore laid down by this court
that general and specific words, which are capable of an analogous
meaning, being associated together, take color from each other, so
that the general 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 meaning analogous to the meaning of the
words “clothing, wearing apparel,” and consequently that they would
only embrace articles of the same kind as those expressly 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, we can see no reasonable
ground for prohibiting such manufacturers and their employees from
contracting for more than eight hours of work in one day, while other
manufacturers and their employees are not forbidden to so contract.
If the act be construed as applying to manufacturers of all kinds
of products, there is no good reason why the prohibition should be
directed against manufacturers and their employees, and not against
merchants, or builders, or contractors, or carriers, or farmers, or
persons engaged in other branches of industry, and their employees
therein. Women employed by manufacturers are forbidden by section 5
to make contracts to labor longer than eight hours in a day, while
women 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 many hours of labor in a day as they
choose. The manner in which the section thus discriminates against one
class of employers and employees and in favor of all others places it
in opposition to the constitutional guaranties hereinbefore discussed,
and so renders it invalid.
But, aside from its partial and discriminating character, this
enactment is a purely arbitrary restriction upon the fundamental
rights of the citizen to control his or her own 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 assumes to dictate to what extent the
capacity to labor may be exercised by the employee, and takes away
the right of private judgment as to the amount and duration of the
labor to be put forth in a specified period. Where the legislature
thus undertakes to impose an unreasonable and unnecessary burden upon
any one citizen or class of citizens it transcends 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
may be as tyrannical as partial laws. A distinguished writer upon
constitutional limitations has said that general rules may sometimes be
as obnoxious as special, if they operate to deprive individual citizens
of vested rights, and that while every man has a right to require that
his own controversies shall be judged by the same rules which are
applied in the controversies of his neighbors, the whole community is
also entitled, at all times, to demand the protection of the ancient
principles which shield private rights against arbitrary interference,
even though such interference may be under a rule impartial in its
operation. Section I of article 2 of the Constitution of Illinois
provides as follows: “All men are by nature free and independent, and
have certain inherent and inalienable rights; among these are life,
liberty and the pursuit of happiness. To secure these rights and the
protection of property governments are instituted among men, deriving
their just powers from the consent 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 inherent and inalienable one, and any attempt to unreasonably
abridge it is opposed to the Constitution. As was aptly said in
Leep _vs._ Railway Co., _supra_: “When the subject of contract is
purely and exclusively private, unaffected by any public interest
or duty to person, to society, or government, and the parties are
capable of contracting, there is no condition existing upon which the
legislature can interfere for the purpose of prohibiting the contract
or controlling the terms thereof.” An instance of the care with which
this right to contract has been guarded may 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 any person be prevented by anything herein contained from
working as many hours over time or extra hours as he or she may agree.”
An ordinance of the city of Los Angeles, making it a misdemeanor for
any contractor to employ any person to work more than eight hours a
day where the work was to be performed under any contract with the
city, was held to be unconstitutional and void, the supreme court of
California there saying: “It is claimed in support of the petition that
this ordinance was unconstitutional and void. We think this objection
is well taken. It is simply an attempt to prevent certain parties
from employing others in a lawful business, 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 be performed
were unlawful, or against public policy, or the employment were such
as might be unfit for certain persons; as, for example, 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
contract is that he shall work more than a limited number of hours per
day.” In the case of Low _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
throughout the state, excepting those engaged in farm and domestic
labor, and making violation of the provisions a misdemeanor, was held
to be unconstitutional and void, both as being special legislation
and as attempting to prevent persons legally competent to enter into
contracts from making their own contracts.
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. Where the ostensible object of an enactment is to secure the
public comfort, welfare, 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 property of a citizen or interferes
with his personal liberty, it is the province of the courts to
determine whether it is really an appropriate measure for the promotion
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.
The 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
contemplated by the act which is in itself unhealthy or unlawful or
injurious to the public morals or welfare. Laws restraining the sale
and use of opium and intoxicating liquors have been sustained as valid
under the police power. Undoubtedly, the public health, welfare, and
safety may be endangered by the general 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 manufacture 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 persons doing them, which is made the basis of the 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 woman on account of her
sex and physique. It will not be denied that woman is entitled to the
same rights, under the constitution, to make contracts with reference
to her labor, as are secured thereby to men. The first section of the
fourteenth amendment to the Constitution of the United States provides:
“No state shall 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 protection of the law.” It has been held that a woman is both
a “citizen” and a “person” within the meaning of this section. The
privileges and immunities here referred to are, in general, “protection
by the government, 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 may prescribe for
the general good of the whole.” As a “citizen,” woman 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 guaranteed to her is the
right to make and enforce contracts. 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 denied or abridged on account of sex. The tendency
of legislation in this state has been to recognize the rights of woman
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 woman
shall be prevented by anything therein contained from working as many
hours overtime or extra hours as she may 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 occupation,” etc., provides that “no person shall
be precluded or debarred from any occupation, profession or employment
(except military) on account of sex.” The married woman’s act of
1874 authorizes a married woman to sue and be sued without joining
her husband, and provides that contracts may 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 may receive,
use, and possess her own earnings, and sue for the same in her own
name, free from the interference of her husband or his creditors.
Section 5 of the act of 1893 is broad enough to include married women
and adult single women, as well as minors. As a general thing, it is
the province of the legislature to determine what regulations are
necessary to protect the public health and secure the public safety and
welfare. But, inasmuch as sex is no bar, under the constitution and
law, to the endowment of woman with the fundamental and inalienable
rights of liberty and property, which include the right to make her
own contracts, the mere fact of sex will not justify the legislature
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 welfare proposed to
be secured by it. People _vs._ Gillson, _supra_.
Counsel for the people refer to statements in the text-books
recognizing the propriety of regulations which forbid women to
engage in certain kinds of work altogether. Thus it is said in
Cooley on Constitutional Limitations, that “some employments ... may
be admissible for males and improper for females, and regulations
recognizing the impropriety, and forbidding women 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 application 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 women to be engaged
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 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. But 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. The court of appeals of New
York, in passing upon the validity of an act “to improve the 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 not be sufficient that the use of tobacco may be
injurious to some persons, or that its manufacture may be injurious to
those who 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 may
threaten or inflict damage upon the public or third persons, there
can be no doubt as to the constitutionality of any statute which
prohibits their prosecution of that trade. But it is questionable,
except in the case of minors, whether the 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 by women because the employment will prove hurtful to
themselves than it would be for the state to prohibit men 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-smelting
works, because the lives of the men so engaged are materially
shortened.” Section 86.
We are also referred to statements made in some of the text-books to
the effect that the legislature may limit the hours of labor of women
in manufacturing 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 it was held
that an act providing that no woman over the age of 18 years should
be employed by any person, firm, or corporation in any manufacturing
establishment more than 10 hours in any one day was valid. But,
under the Constitution of Massachusetts (part 2, c. 1, § 1, Art. 4),
the legislature has power to ordain all manner of reasonable and
wholesome statutes, with or without penalties, not repugnant to the
Constitution, “as they shall judge to be for the good and welfare 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 legislative 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 practically without 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 courts to
decide whether a measure, which assumes to have been passed in the
interest of the public health, really “relates to, and is convenient
and appropriate to promote, the health.” We said in Lake View _vs._
Rose Hill Cemetery Co., 70 Ill. 191: “As a general proposition, it may
be stated it is the province of the law-making power to determine when
the exigency exists calling into exercise this power. What are the
subjects of its exercise is clearly a judicial question.” The reasoning
of the opinion in the Massachusetts case cited does not seem to us to
be sound. It assumes that there is no infringement upon the employer’s
right to contract, because he may employ as many persons or as much
labor as he chooses; nor upon the employee’s right to contract, because
she may labor as many 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 valueless if it could not be exercised
with reference to the particular subject-matter in hand. If its
exercise is forbidden between two persons competent to contract, and
concerning a lawful subject of contract, it is none the less abridged
because other persons may be permitted to contract, or because the
same persons may be at liberty to contract about some other matter. We
cannot more appropriately close the discussion of this branch of the
case than by quoting, and adopting as our own, the following words of
the New York court of appeals in re Jacobs, _supra_: “When a health
law is challenged in the courts as unconstitutional on the ground that
it arbitrarily 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, 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 to condemn legislative acts which are in conflict
with the supreme law should be exercised with great caution, 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 and every member
of the community from undue and destructive innovations upon their
charter rights.’”
* * * * *
Our conclusion is that section 5 of the act of 1893, and the first
clause of section 10 thereof, are void and unconstitutional for the
reasons here stated. These are the only portions of the act which have
been attacked in the argument of counsel. No reason has been pointed
out why they are not distinct and separate from the balance of the
act. The rule is that, where a part of a statute is unconstitutional,
the remainder will not be declared to be unconstitutional also, if the
two are distinct and separable, so that the latter may stand though
the former becomes of no effect. We do not wish to be understood by
anything herein said as holding that section 5 would be invalid if it
was limited in its terms to females who are minors. The judgment of the
criminal court of Cook county is reversed, and the cause is remanded
to that court, with directions to dismiss the prosecution. Reversed and
remanded.
APPENDIX III
HOLDEN _vs._ HARDY
(Supreme Court of the United States. February 28, 1898.)
CONSTITUTIONAL LAW--DUE PROCESS--EQUAL PROTECTION--EIGHT-HOUR LAWS
1. “Due process of law” implies at least a conformity with natural and
inherent principles of justice, and forbids 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 condemned in his person or property without an opportunity of being
heard in his own 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 dissenting.
In Error to the Supreme Court of the State of Utah.
These were writs of error to review two judgments of the Supreme
Court of the state of Utah 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 follows: On June
20, 1896, complaint was made to a justice of the peace of Salt Lake
City that the petitioner, 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, 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 emergency, 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 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.
“It deprives the defendant and employers and employees 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, imposed 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
Court of the state; annexing 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 unlawful employment
by Holden of one William Hooley to work and labor in a certain
concentrating mill--the same being an institution for the reduction of
ores--for the period of 12 hours per day. The proceedings in this 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.
J. M. Wilson, for plaintiff in error. Chas. J. Pence, for defendant in
error.
Mr. Justice Brown, 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 regulating the hours of employment in
underground mines and in smelters and ore reduction works.” The
following are the material provisions:
“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.
“Sec. 3. Any person, body corporate, agent, manager, or employer, who
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 employees in factories, smelters and
mines.” As the article deals exclusively with the rights of labor, it
is here reproduced in full, as exhibiting the authority under which
the legislature acted, and as throwing light upon its intention in
enacting the statute in question (Laws 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 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 legislatures 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.”
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, deprives 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 protection of the laws, are so connected
that the authorities upon each are, to a greater or less extent,
pertinent to the others, they may properly be considered together.
Prior to the adoption of the fourteenth amendment, there was a similar
provision against deprivation of life, liberty, or property without
due process of law incorporated in the fifth amendment; 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 application to the fourteenth amendment, which operates
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 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 constitutionality of a law of the state of
Louisiana, passed in 1869, vesting in a slaughter-house company 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 intended 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
restricted to that purpose was admitted both in the prevailing and
dissenting opinions, and the validity of the act was sustained as a
proper police regulation 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 may be divided, generally, into two 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 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.
Among those of the first class, which, for the sake of brevity, may 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 women to
suffrage, and to admission to the learned professions.
To this class is also referable all those cases wherein the state
courts were alleged to have denied 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 expeditious forms of administering justice, are much less
numerous, though of even greater importance, than the others. A
reference to a few of these cases may not be inappropriate in this
connection. Thus, in Walker _vs._ Sauvinet, 92 U. S. 90, which was an
action brought by a colored man against the keeper of a coffee house
in New Orleans for refusing him refreshments, in violation of the
constitution 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,
who 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 according
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
Constitution 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 abolishing the fellow-servant doctrine,
as applied to railway 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 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 under the fourteenth
amendment will demonstrate that, in passing upon the validity of
state legislation under that amendment, 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 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, much had been done toward mitigating the severity of
the common 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 common law, which denied the benefit of witnesses to a person
accused of felony, had been abolished by statute, though, so far as it
deprived him of the assistance of counsel and compulsory 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 foothold 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 elimination 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 now transferred almost as easily and cheaply as
personal property. Married women have been emancipated from the control
of 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
have been largely added to, and in most of the 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 serious of crimes is now 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 way to verdicts rendered by a three-fourths majority. This 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 substitution of prosecution by information in lieu of indictment
was recognized as valid in Hurtado _vs._ California, 110 U. S., 516, 4
Sup. Ct., 111, 292. They are mentioned only for the purpose of calling
attention to the probability that other changes of no less importance
may be made in the future, and that, while the cardinal principles of
justice are immutable, the methods by which justice is administered
are subject to constant fluctuations, and that 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.
Of course, it is impossible to forecast the character or extent of
these changes; but in view of the fact that, from the day Magna Charta
was signed to the present moment, amendments to the structure of the
law have been made with increasing frequency, it is impossible to
suppose that they will not continue, and the law be forced to adapt
itself to new conditions of society, and particularly to the new
relations between employers and employees, as they arise.
* * * * *
The same subject was also elaborately discussed by Mr. Justice
Matthews in delivering the opinion in Hurtado _vs._ California:
“This flexibility and capacity for growth is the peculiar boast and
excellence of the common law.... The Constitution of the United States
was ordained, it is true, by descendants of Englishmen, who 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 many nations, and of many tongues. And, while we take
just pride in the principles and institutions of common 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. Due process of law, in spite of the absolutism of continental
governments, is not alien to that code which survived the Roman
Empire as the foundation of modern civilization in Europe, and which
has given us that fundamental maxim of distributive justice,--‘_Suum
cuique tribuere._’ There is nothing in Magna 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 it was the
characteristic principle of the common 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 new and various experiences of our own 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 the nation, as heretofore, it is not impossible that congress may
see fit to annex territories whose jurisprudence is that of the civil
law. One 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 systems 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 inhabitants 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 may doubtless adopt such
systems of laws as best conform to their own traditions and customs,
the people of the entire country have laid down 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 section of the first
article contains certain other specified limitations upon the power
of the several states, the object of which was to secure to congress
paramount 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 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 government, which no
member of the Union may disregard, as that no man shall be condemned in
his person or property without due notice, and an opportunity of being
heard in his defense. What shall constitute due process of law was
perhaps as well stated by Mr. Justice Curtis in Murray’s Lessees _vs._
Land Co., 18 How. 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 government, and cannot be so
construed as to leave congress 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 Constitution
itself, to see whether this process be in conflict 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 common and statute law of
England, before the emigration of our ancestors, and which are shown
not to have been unsuited to their civil and political condition, by
having 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._ New Orleans, 96 U. S. 97, that the words “law
of the land,” as used in Magna 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 presented for
decision shall require, with the reasoning on which such decisions may
be founded.” Recognizing 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 condemned in his person or
property without an opportunity of being heard in his own defense.