The dual responsibility which our lawmakers and judges bear, on the
one hand to the people, and on the other to the Big Men, produces
a chaos of conflicting laws and decisions. For the chartering of
business corporations we have the “Delaware theory,” which seems to be
to give the applicant whatever he asks for; the “New Jersey theory,”
which is a slight modification of the former; and the “Massachusetts
theory,” which reserves to the State a certain measure of supervision
and control. For the fixing of employers’ liability for injuries to
workmen we have a wide range of precedents, from States which hold to
the common-law doctrine that practically frees the employer from blame,
to those which fix a liability in somewhat definite terms. Factory
legislation, regulations for the public health, the determination of a
legal workday, the restraining of corporate aggressiveness--these and
a score of like questions are variously passed upon or deliberately
avoided in the several States. Judicial decisions, too, present a
spectacle of the widest diversity.
Nevertheless this chaos shows signs of a gradual reduction to order.
The insistent challenge, “Under which king, Bezonian, speak or die!”
which perpetually assails all of our legislative and judicial
functionaries, sooner or later forces a decision, and naturally it is
the stronger rival that wins. How effective is this challenge, how
strong is the pressure, Mr. John Jay Chapman has strikingly shown in
his “Causes and Consequences,” and the instances that crop out from
time to time, like that of the recent tampering with the Supreme Court
of Missouri, reveal only a needless confirmation of a known truth.
Legislation in behalf of the general welfare and of the industrially
dependent classes becomes less frequent and more guarded; and judicial
decisions in matters that involve class antagonisms are more frequently
given to the dominant class.
I
A marked tendency of recent legislation is that toward giving increased
powers to municipal officials. Another is that toward the creation
of boards charged with administrative, executive, semi-judicial, and
even police powers. The institution of these boards means simply a
further removal from the people of the conduct of public affairs.
Mr. Leonard A. Blue, in the _Annals of the American Academy_ for
November, 1901, gives an interesting view of the subject. “These
boards,” he writes, “are practically irresponsible bodies. They are
beyond the control of the people, or of any one who is responsible
to the people for their actions. Appointed as they are for definite
terms of office, they cannot be removed during that term except after
an investigation which amounts to an impeachment. The Governor who
appoints them in many cases can only appoint a single member, the
terms of the others extending beyond his own, so that he can neither
mould the policy of the board nor can he be held responsible for it.”
And he quotes from one of the messages of the Hon. W. E. Russell,
Governor of Massachusetts (1891-93), these words: “The people of the
State might have a most decided opinion about the management and work
of the departments, and give emphatic expression to that opinion,
and yet be unable to control their action. The system gives great
power without proper responsibility, and tends to remove the people’s
government from the people’s control.” Irresponsible to both the people
and the people’s officials as they are, these boards are yet not
wholly unsusceptible to outside pressure; they are, as is well known,
peculiarly liable to the influence of the Big Men.
II
While legislation moves rapidly enough in the direction of detaching
political powers from the people, it shows a growing disinclination
to meddle with affairs between magnate and minion. Twelve or fifteen
years ago, in certain sections, “labor” legislation had a flourishing
career. The number of laws so classified, passed in a single three-year
period in New York State, made a record for all time. Labor was then
rapidly combining, and its lusty organizations made emphatic demands
for protective laws. A Democratic Governor, not wholly regardless of
hopes of the Presidential succession, for the time allied himself
with the movement and secured the passage of many of these measures.
With an alacrity much greater than that with which the Constitution
follows the flag, judicial decisions in those days tended to follow the
general policy of the party in power, and thus but slight trouble was
experienced in securing constitutional sanction.
Other States followed, and for several years the astonishment and
indignation of the Big Men were intermittently roused by the spectacle
of Jacobinical legislators meddling in affairs outside their province.
Mr. F. J. Stimson, in the _Atlantic Monthly_ for November, 1897,
informs us that in the ten preceding years 1639 laws relating to
labor had been passed in the various States and Territories. This
is an average of 3.4 a year for each legislature, though the courts
had modified the average somewhat by declaring 114 of these measures
unconstitutional. Doubtless among those that escaped the “killing
decree” of the courts were a number that benefited the worker, though
it is doubtful if any of them served to modify his economic status.
However that may be, it is unquestioned that the tendency toward the
enactment of this sort of legislation has suffered a decline. It is
hard to fix the point of culmination, though probably it lies somewhere
about the years 1896-97. In isolated instances, and under peculiar
circumstances, it is conceded there is an occasional revival. The
Pennsylvania legislature of 1897 showed a remarkable zeal, shortening
the workday of women and minors, limiting child labor, establishing
a bureau of mines, and making other regulations. Maryland, in 1898,
imposed certain mining regulations and required seats in stores for
women workers. Virginia and Massachusetts, in the same year, interfered
slightly, the former with an arbitration act. In the spring of 1899,
Kansas, Illinois, Colorado, Indiana, Michigan, Nebraska, Washington,
and Wisconsin, all addressed themselves more or less earnestly to the
redress of certain grievances; and they were followed by Iowa in 1900,
by Massachusetts again in the same year, and by Alabama in 1901. In
the present year New York, after five years of agitation, reluctantly
granted a moderately expressed employers’ liability law.
Most of this legislation, however, was enacted in the newer States,
and served only to push them along toward the standard set in the
older States in earlier years. Advances of any sort are difficult to
discover. As for the year 1901, the record of progressive legislation
is almost bare. Congress suppressed the Eight-hour, Anti-injunction,
and Prison-labor bills, and mutilated the Chinese bill. A convention
of the National Association of Railway Commissioners, comprising
representatives from twenty-five State boards and from the Interstate
Commerce Commission, petitioned Congress, in June, 1901, to enact
a number of measures regarding railway traffic; but our lawmakers
appear to have been too busy with other matters. Factory legislation
has suffered a relapse in all of the States. “The statutes of 1901,”
euphemistically writes Mr. Horace G. Wadlin, in the New York State
Library’s “Review of Legislation, 1901,” “which may be classed as
protective legislation, intended to safeguard the workman in his
employment or to secure to him his wages, are neither very numerous
nor very radical.” Something better, however, as Mr. Adna F. Weber
points out in the same volume, was done in regard to shorter workdays.
California passed an Eight-hour law for State work; Minnesota, with
certain liberal exceptions, another; while Utah penalized infractions
of an existing law. Even Pennsylvania, generally so sensitive in
the matter of interfering with the rights of her workers to employ
themselves in any manner they are constrained to choose, made the
daring innovation of prohibiting a longer workday than twelve hours for
women and minors in bakeries. Doubtless the lesson to be learned from
this is a growing inclination toward the gospel of relaxation, which
Mr. Herbert Spencer so emphatically invoked on his visit here twenty
years ago. An industrial Feudalism is not inconsistent with a moderate
workday, and it is not unlikely that some further experiments in this
line may be made.
III
An average man, not overlearned in political science, and not too well
acquainted with the ways and means of politicians, might naturally
suppose that the result of something more than 1639 “labor” laws would
be an almost revolutionary change in the conditions of industry. He
might suppose a general effect comprising these particulars: the
securing of safe places and safe conditions for toil; the utmost
safeguarding against accidents; the fixing of liability for injuries or
death suffered in the service of a master; the guarantee of the right
of workmen to combine, to leave their work for causes sufficient to
themselves, and peaceably to persuade others to do so; the guarantee of
protection from blacklisting by employers, and the framing of all such
laws in a spirit so sincere and in diction so definite that judicial
discretion would be reduced to a minimum.
“Labor” legislation, however, takes on too much a form and pressure due
to influences from above to confirm even this temperate supposition. It
is somewhat presumptuous, and in a later time will be grossly impious,
for a layman not of the seigniorial class to speak querulously on
so sacred a subject; yet it needs must be said that the mass of the
measures so far framed have proceeded but little beyond the confines of
the common law. Many of them, indeed, are mere enactments into statute
of that elastic, not to say elusive, body of precedent. The common law
comes down to us from distant times, when other conditions prevailed,
and throughout all of it which bears on the relations of master and
servant there runs a principle based on an unsupported theory. “This
theory,” writes Mr. George W. Alger, a member of the New York Bar, in
the _American Journal of Sociology_ for November, 1900, “resolutely
closed its eyes to common, obvious, social and economic distinctions
between men, either considered as individuals or as classes, and with
a self-imposed blindness imagined rather than saw the servant and his
master acting upon a plane of absolute and ideal equality in all
matters touching their contractual relation; both were free and equal,
and the proper function of government was to let them alone. If the
servant was dissatisfied with the conditions of his employment; if the
dangers created not merely by the necessities of the work, but by the
master’s indifference to the safety of his men, were in the eyes of the
latter too great to be endured with prudence, then, being under this
theory a ‘free agent’ to go or to stay, if he chose to stay he must
take the possible consequences of personal injury or death.”
Under the common law, it is true, the employer is presumed to have
certain duties toward his workmen. As interpreted by Mr. Stephen D.
Fessenden, LL.M., in the _Bulletin_ of the Department of Labor, for
November, 1900, these obligations are as follows:--
“An employer assumes the duty toward his employee of exercising
reasonable care and diligence to provide the employee with a reasonably
safe place at which to work; with reasonably safe machinery, tools, and
implements to work with; with reasonably safe materials to work upon,
and with suitable and competent fellow-servants to work with him; and,
in case of a dangerous or complicated business, to make such reasonable
rules for its conduct as may be proper to protect the servants employed
therein.”
This common-law doctrine is, however, very seriously qualified by the
doctrine of the workman’s assumption of risk, of his contributory
negligence, and of negligence on the part of a fellow-servant. Each of
the terms in this doctrinal trinity is of expansive elasticity, and
even the constituent words of each term may be variously interpreted.
So that a workman forced to earn his bread where he can, in the face
of constant perils, literally takes his life in his hands. If injured,
there may be set up and sustained against his claim for damages
the plea of free and unconstrained assumption, or of contributory
negligence, or of negligence of another workman, even though the latter
may be a superior who orders the victim to his dangerous task.
“It is a well-settled principle of common law,” writes Mr. Fessenden,
“that where ... duties [of employers] are imposed by legislative
enactment or municipal ordinance, it is negligence on the part of the
employer to fail to comply with [these] requirements.” Now it happens
that the United States, twenty States, the District of Columbia (by act
of Congress), and one Territory have enacted this common-law principle
into statute, affixing it to certain regulations of industry. Yet in
such manner are the greater number of these statutes drawn that it
is often found possible to evade them on the score of one or more of
the terms in the common-law theory. The record of decisions on these
statutes is at best conflicting and confusing. But enough can be shown
to illustrate the frequent futility of the laws to secure either
employers’ compliance with imposed duties or employers’ liability for
injuries due to negligence. The Ohio Supreme Court, in 1895, held that
“one cannot maintain an action against his employer for an injury
following a violation of the act regulating coal mines, unless at the
time he was injured he was in the exercise of due care; that one who
voluntarily assumes a risk thereby waives the provisions of a statute
made for his protection.” The Wisconsin Supreme Court decided that the
law (1889) requiring the guarding or blocking of railway frogs “does
not take away the defence of contributory negligence.” The New York
Court of Appeals in the case of Knisley _vs._ Pratt (148 N. Y. 372)
decided that to hold that the workman could not waive his master’s
statutory duty by continuing at work was “a new and startling doctrine
calculated to establish a measure of liability unknown to the common
law.”
Statute law is presumed to replace common law and to redress the
inequities resulting from the application of old principles to changed
conditions. But the redress of inequities is conspicuously wanting in
much of the so-called “protective” legislation. It is impossible to
guess whether on the one hand in legislative indifference or unwisdom,
or on the other hand in judicial interestedness and overwisdom, lies
the greater cause of these statutory failures. Some added speculations
on the subject will be found further along. But whatever the attitude
of the judges, that of the lawmakers reveals a chronic and now
intensifying fear of disturbing the sacred privileges of “business.”
The contractual waiving, by the employee, of the employer’s negligence,
is a subject about which a number of legislatures have concerned
themselves. Two States (Georgia and Massachusetts), according to
Mr. Fessenden, have forbidden such waivers generally, one State
(Ohio) has declared void such contracts when made by employees,
and twelve States and one Territory have forbidden such waivers
where the liability is imposed by statute. The Ohio law, however,
was declared unconstitutional by the United States Circuit Court
for the Northern District of Ohio in 1896 on the ground that “in
denying to the employees of a railroad corporation the right to make
their own contracts concerning their own labor, [it] is depriving
them of ‘liberty’ and of the right to exercise the privileges of
manhood, ‘without due process of law’;” and furthermore that it was
class legislation. Each of these laws, moreover, can be practically
nullified, as the courts have repeatedly held. An employer may organize
a relief organization for the payment of benefits. He may tax his
employees for a greater or less part of the expenses of the department.
He may then make employment conditional upon the workman’s joining
the association and signing a pledge agreeing, in consideration of
the payment of the regular benefits, to release the employer from
all claims for injuries. Such contracts are valid, since, according
to the ingenious interpretation of the courts, they do not waive
damages, but choose between two sources of compensation. Only one State
(Iowa) has had the temerity to declare this practice illegal, and in
view of the action of the courts the law will probably be held to be
unconstitutional.
Statutory provisions against accidents to workmen reveal quite as much
timidity as do provisions regarding employers’ liability. The yearly
number of accidents in our industries is unknown, and can be only
roughly guessed at. The investigation of the New York Commissioner of
Labor, in the spring of 1899, would indicate a yearly average of 14,576
accidents for factory workers alone in one State. In the Pennsylvania
anthracite mines more than 400 persons are killed every year, and in
the bituminous mines of the same State the yearly average for the
period 1895-98 was 171 killed and 421 injured. An official report made
to the United States Geological Survey in September gives the record
of lives lost in mining coal for the year 1901 as 1467, and the number
of workmen injured as 3643. In the anthracite mines of Pennsylvania
513 men were killed and 1243 injured, and in the bituminous fields of
the same State 301 were killed and 656 injured. The railroads provide
a yearly Gettysburg, with some 40,000 casualties to workmen alone;
and many an industry annually furnishes its humble Bull Run or Fort
Donelson.
Regulations, however, proceed cautiously, not to say haltingly; they
are generally tame regulations, they are frequently disobeyed, and
their effect on the casualty rate is anything but radical. Though for
1901 the increased use of safety appliances lessened the percentage of
coupling accidents on railroads, the percentage actually increased for
1898, 1899, and 1900. Since 1898 there has been an increase in the rate
of accidents in coal mining, and doubtless, also, if the figures were
known, an increase could be shown for factories and workshops.
Although twenty-one States, according to Mr. William F. Willoughby, in
the _Bulletin_ for January, 1901, provide for an inspection service
in factories, only thirteen impose specific provisions making it
obligatory upon factory and mill owners to take certain precautions
against accidents. Only one of these laws, moreover,--that of
Ohio,--may fairly be called an adequate and definitely expressed
statute. There are but five States that have enacted laws “the purpose
of which is to make it obligatory upon directors of building and
construction work to take certain precautions against accidents,”
and only one of these (New York) has given the measure an adequate
comprehensiveness. Twenty-three States have more or less elaborate
mining regulations; but as compliance with these laws is usually
left to the honor and benevolence of the mine owner, and as mining
accidents continue at a practically static rate, it is hard to see the
beneficial result. Some of the States compel railroads to block or
guard frogs, and several have laws independent of the Federal statute
of 1893, requiring the use of automatic couplers and power brakes. The
former may be evaded, however; and, in the absence of statute imposing
liability, the evasion counts for nothing in behalf of an injured
workman’s claim for damages. The effect on the accident rates has
already been mentioned.
Dr. Sarah S. Whittelsey’s paper in the _Annals of the American Academy_
for July, 1902, summarizes the report of the Industrial Commission on
the results of factory legislation in the various States. From this
it appears that only about half the States have passed what may be
called factory acts, many of which are mere fire-escape provisions, and
that there are almost no factory acts in the South, nor in the more
distinctly agricultural States of the West. New Hampshire, Vermont,
Nebraska, and California generously permit the employment in factories
of children ten years old; seven States put the limit at twelve years,
two at thirteen, ten at fourteen, and one makes the limit fourteen
years for girls and twelve years for boys. Working hours have been
more or less regulated for women and minors in fifteen States, and for
minors alone in nine States. Courts in three States, however, have
declared acts regulating working hours of women unconstitutional. In
sixteen States, three Territories, and the District of Columbia there
is absolutely no limitation for persons of any age or sex. Aside
from certain occasional acts relating to the payment of wages, to
inspection, and to employers’ liability, this is a complete summary of
protective legislation concerning the industries that employ 5,321,087
of the Nation’s wage-earners.
Mr. Fessenden gives a summary of the laws for the protection of workmen
in their employment, in the _Bulletin_ for January, 1900. The most
timid conservative may read it with relief, for any fears of an undue
lodgment of power in the working classes will be effectually banished
by its perusal. Only nine States have gone so far as to enact into
statute the supposed common-law principle that combinations of workmen,
formed for the purpose of seeking increase of wages and betterment of
conditions, are not of themselves unlawful. Four others specify that
the provisions of their “anti-trust” acts do not apply to combinations
of labor. On the other hand, the anti-conspiracy laws of eleven
States are capable of interpretation which would penalize many of the
peaceable methods of labor societies, and such interpretations have
been frequently made.
Moreover, the wording of Sections 3995 and 5440 of the Federal Revised
Statutes, chapters 647 of the Anti-trust act, and 104 of the Interstate
Commerce act, and the amendment of 1889 to the latter, are capable
of interpretation to the effect that collective quitting of work on
railways is illegal. Decisions to that effect have several times
been made in the United States courts. “A strike, or a preconcerted
quitting of work,” reads the decision in United States _vs._ Cassidy
(1895) before the District Court of the United States for the Northern
District of California, “by a combination of railroad employees,
is in itself unlawful, if the concerted action is knowingly and
wilfully directed by the parties to it for the purpose of obstructing
and retarding the passage of the mails, or in restraint of trade
and commerce among the States.” “It will be practically impossible
hereafter,” reads the United States Circuit Court decision in the
case of Waterhouse _et al. vs._ Cromer (1893), “for a body of men to
combine to hinder and delay the work of the transportation company
without becoming amenable to the provisions of these statutes.” The
indefinite diction of many of the State laws against “intimidation and
coercion” also gives wide scope to judicial discretion, and permits the
occasional naming of the most innocuous acts as “coercion.”
The necessity of peace in an industrial society is everywhere
recognized; and it is, therefore, not surprising that really earnest
efforts have been made in behalf of arbitration. It obtained, in a
measure, during the older Feudalism, through the “courts baron,”
which considered tenantry and wage-questions; and it is becoming more
common day by day. Within sixteen years twenty-one States and the
United States have passed more or less effective measures looking to
its use in labor disputes. Political coercion is also a matter that
has won a large share of legislative attention; twenty-nine States and
two Territories have enacted laws regarding it. There is, however, an
important distinction to be made. In an ordinary conflict of political
issues, when the magnates and their retainers are to be found in both
parties, it is obvious confusion and the unsettling of political
conditions for the employers to dictate how their workmen shall vote.
But when political issues suggest a class conflict, as in 1896, some of
the provisions of these laws are by common consent waived. The humble
toiler may vote as he likes on the immaterial questions of ordinary
campaigns; but on questions having to do with the salvation of society
and the preservation of the hallowed code of “business,” instruction
and even gentle pressure become the solemn duty of his social betters.
There are fewer laws, it may be observed, regarding another kind of
coercion. Discharges on account of membership in a labor union are
forbidden in but fifteen states; and in two of these (Illinois and
Missouri) such provisions have been found, after much painstaking
study, to be unconstitutional. The discovery is considered a most happy
one; and according to the injunction of the Federal Constitution, that
“full faith and credit shall be given in each State to the public
acts, records, and judicial proceedings of every other State,” the
ruling will no doubt be found applicable in a number of the other
commonwealths.
IV
Our lawmakers are not to be blamed for decisions of
unconstitutionality. Rather, they are to be congratulated. For the
recent tendency of the judges to determine for themselves what shall
be enacted into law has developed new refuges for the lawmakers. We
have now Solon, the legislator, and Rhadamanthus, the judge, in new
rôles--the rôles of the good and bad partner of Dickens’s novel. To
the humble voter, when the pressure from below conflicts with the
pressure from above, Solon is now able to stand as the supporter of
popular measures, and to throw upon the less responsible Rhadamanthus
the onus of declaring them bad law. The fury of the magnate at Solon’s
demagogy is mitigated, if not extinguished, when he considers the
difficulties of the lawmaker’s position, and especially by the further
consideration that Rhadamanthus has the final word to say. Solon has
other refuges, it is true; and sometimes these must be availed of,
for it is not always certain that a projected popular measure can be
declared unconstitutional. For several years it had been considered
possible, for instance, that an employers’ liability act, if passed in
New York, would stand the test of the courts. It became the custom,
therefore, when an adequate measure on this subject was introduced, for
the adverse interests to introduce a conflicting bill. The ingenious
lawmaker thereupon regretfully found a divided public sentiment, and
as a consequence no bill was passed. There are no reasons at hand
for accounting for the fact that at the last session of the Albany
legislature such a measure was actually enacted.
V
How far our legislators are enabled to withstand public sentiment, no
matter how strongly based in reason and how definite in objective, may
be instanced in the attitude of Congress regarding the Safety-appliance
act of 1893. Agitation for this measure had grown to such an extent
that action could no longer be delayed. But though action on the bill
could not be delayed, the terms of fulfilment of the bill could be
postponed to a comparatively remote period. The number of railway
employees killed in the year ended June 30, 1893, was 2727, a number
exceeding the Union death roll in every battle of the Civil War except
Gettysburg, and within 243 of that record. In the same year the number
of wounded (31,729) was more than three times as great as the number
of Union wounded at either Antietam or Chancellorsville, and more than
double that at Gettysburg. Yet despite this tremendous carnage, the
legislators, wavering between the public demands and the demands of the
magnates, though they passed the bill, generously granted five years
for its complete observance, and then gave the Interstate Commerce
Commission the power to grant further delays--in effect giving seven
years for its fulfilment. In those seven years 13,906 employees
were killed--a loss exceeding the Union death roll at Gettysburg,
Spottsylvania, the Wilderness, Antietam, Chancellorsville and
Chickamauga combined--and approximately 220,000 were wounded, or more
than three times the number of Union wounded in those six battles. That
a great part of this casualty record was avoidable is evidenced in the
August report of the Interstate Commerce Commission, which shows that
the number of employees killed in coupling accidents in the year ended
June 30, 1901, declined from 282 to 198, and the number injured from
5229 to 2768. It was in 1893 that this generous latitude was granted
the magnates. Were the occasion to arise now, it is probable that the
term of grace would number fourteen years instead of seven.