In framing many of these laws, for example the factory acts, much has necessarily been left to the discretion of inspectors in the decision of what is “adequate” provision. Especially where appliances not contemplated in the ordinary law are offered, very careful judgment is called for. Such powers cannot be entrusted to untrained and inexperienced persons, however well intentioned, nor is the training of police duty any sufficient preparation. It would not be considered appropriate to appoint a policeman inspector of stationary steam boilers or examiner of engineers, yet under present factory laws, technical knowledge of industrial processes, machinery, etc., is sometimes equally demanded. In Massachusetts the original method of detailing police as inspectors when occasion demanded, or even permanently installing them in these positions, has been abandoned for the stricter and more adequate tests of civil service examinations open to all applicants. And again her example indicates a general trend.
The tendency in inspection already is, and in the future must be more markedly, toward the growth of a distinct and specialized department, in which the chief and his assistants are trained for their work. Such a department, while it would not stand in the relationship which some at present hold to the police, would come into closer touch with other departments, as the Board of Education and Bureau of Labor.
Uniform Labor Legislation.
The influence of state boundary lines upon the course of legislation in this country is an interesting question, and one upon which entirely diverse opinions are held. Some go so far as to claim that there never can be really successful legislation so long as such boundaries hold; that if a good labor law is passed in one state and enforced there, the benefit that may result to the few operatives is balanced by the restriction which it puts upon the producer and the consequent discrimination against capital in that state as compared with its neighbors. Capital therefore seeks investment in those sister states instead of in the law-trammeled one, thus reacting against the interests of the labor market there; while states that so profit in their freedom are the more loath to give over their advantage by enacting similar measures. Thus legislation in one state becomes at once detrimental to its own industrial interests, and a check upon legislation elsewhere. Loud protests of this tenor were heard, for example, in Massachusetts a few years ago, when at a time of business depression the cotton mills suffered from the competition of Southern rivals. A somewhat extended study of the situation at that crisis, however, failed to show that these detrimental consequences had followed in actual life, or that the stress felt by the mills could have been removed by a suspension of the laws complained of.
On the other hand, when we begin to reckon with the difficulties that must be encountered in any attempt to legislate upon labor conditions in this country treated as a whole (even disregarding entirely the present constitutional impediment), we find arguments showing that local self-government has probably furthered the development of labor legislation. In the first place, it is much more difficult to persuade a body with such wide jurisdiction to pass what must often be experimental measures and may endanger national interests. Suppose, however, that this legislation was undertaken, it would be well-nigh impossible to frame a measure that would apply with justice throughout and in communities where industrial occupations differ entirely in kind, or, if of like order, range through many stages of development. It would mean that such legislation must conform to a very low margin of production in order to avoid injury to states where conditions are backward, and that would leave unregulated much that has clearly shown need of regulation in states where there is higher organization of industry. Would it not, in fact, be absolutely necessary to mark out territorial divisions that might not of course follow state boundaries, but would not in the end differ essentially from them in character? Again, such divisions mapped, what an impossible labor is put upon the central body if it would legislate wisely for the several sections! Would it not be necessary at least to appoint some advisory body to study the local needs of each section and to report recommending appropriate measures? In the end, what would we have in the least better than the present system?
Within a single state the labor interest is united, the pros and cons of the situation can be more easily investigated, effects more easily watched and even more accurately predicted. Jevons might indeed have considered it a well-fitted laboratory for his scientific experimentation in legislation. The success of a local experiment acts often as an incentive to labor elsewhere to demand like privileges, and as against the argument of an insignificant tax upon production, the political power of the labor party has very generally won the day. The second state feels itself at no greater disadvantage than that which took the initiative in the movement, and may easily take the precaution of passing restrictions that are a trifle under those of its neighbor.
This discussion, however, leaves us still face to face with a confusion of local regulations, among which there is total lack of any uniformity. The situation has for some time attracted public comment, and there is a growing desire for uniformity especially in the protection of child labor and in the curtailment of the hours of labor, which are the regulations that particularly affect the interests of capitalists. Quixotic attempts to force an amendment of the Constitution, and to secure the passage of a national eight-hourday law, have been chronicled in the movement, which nevertheless, with more moderate aims, has steadily gathered strength. At last, under the Industrial Commission of 1898, the problem of uniform legislation has been clearly recognized and carefully studied, “in order,” the act reads, “to harmonize conflicting interests and to be equitable to the laborer, the employer, the producer and the consumer” (Sec. 3). Empowered to report with recommendations either directly to Congress or to the several state legislatures, the Commission addressed itself in this “matter of domestic law” to the state legislatures. The report submitted is of such interest and importance that I quote in full its recommendations so far as they apply to factory labor:
“Perhaps the subject of greatest public interest to-day is that of the regulation of the hours of labor permitted in industrial occupations, and especially in factories.... Obviously Congress has no power, without a constitutional amendment, to legislate upon this subject. The Commission are of the opinion that a uniform law upon this subject may wisely be recommended for adoption by all the states. We believe that such legislation cannot, under the federal and state constitutions, be recommended as to persons, male or female, above the age of twenty-one, except, of course, in some special industries, where employment for too many hours becomes positively a menace to the health, safety, or well-being of the community; but minors, not yet clothed with all the rights of citizens, are peculiarly the subject of state protection, and still more so, young children.
“The Commission are of the opinion, therefore, that a simple statute ought to be enacted by all the states, to regulate the length of the working day for young persons in factories (meaning by ‘young persons’ those between the age of majority and fourteen); and in view of the entire absence of protection now accorded by the laws of many states to children of tender years, we think that employment in any capacity or for any time, under the age of fourteen, should be prohibited. The question of shops and mercantile establishments generally appears even more subject to local conditions than that of factories; therefore the Commission see no need for even recommending to the states any uniform legislation upon this subject. But child labor should be universally protected by educational restrictions, providing in substance that no child may be employed in either factories, shops, or in stores in large cities, who cannot read and write, and except during vacation, unless he has attended school for at least twelve weeks in each year.”[[32]]
These are certainly conservative recommendations and illustrate again the difficulty of finding any common ground of action even in the fundamental requirements of health and education. The exception made with reference to shops and mercantile establishments upon the ground of local differences in conditions is interesting. So much evidence has been brought of abuse of child labor in the mercantile houses of many large cities, especially in respect to these two matters of overwork through long hours and of interference with common-school education (above recognized) that several states have voluntarily extended provisions of the factory laws concerning minors to cover such establishments. These conditions appear to reproduce themselves with remarkable similarity in various locations, and it is not altogether clear what local conditions could intervene to make the universal application of the measure proposed for factories undesirable.