Now, the reason of this great principle (peculiar, I think, to Anglo-Saxon law) lies at its very root. It is the principle of personal liberty again. To English notions, and to English courts, indefinite labor continued for an indefinite time, or applied to an indefinite number of services, is indistinguishable from slavery; and compulsory labor even under a definite labor contract, such as to work for a week or a month or a year, or in limited directions, as, for instance, to work at making shoes or weaving cloth, when enforced by the strong arm of the law, smacked too much of slavery to be tolerable by our ancestors. Thus it is that, alone of all contracts, if a man sign an agreement to work for us to-day, he may break it to-morrow and will not be compelled to perform it; our only redress is to sue him for damages, and this again because we can only act under the common law. Chancery at this point at least is forbidden to take cognizance of matters affecting personal liberty and labor; and the common law, as has been said, "sounds only in damages." It is only chancery that can compel a man to do or not to do some thing or to carry out a contract.
The other basic principle affecting all questions of labor law is that of freedom of trade or labor, correlative to the principle of freedom of contract as to property right, and, indeed, embodying that notion also. That is to say (perhaps I should say, to repeat) that an Englishman, an American, has a right to labor where and for whom and at what he will, and freely to make contract for such labor, and freely to exercise all trades, and not to be combined against by others, or competed with by a monopoly favored by the state. These last two clauses, of course, belong to our next chapter. This right of contract is not peculiar to the English law, as is the right not to be compelled to personal service, and is much better understood; though it is still earnestly argued by many advocates of union labor that there is no real freedom of contract, or, at least, equality of contract, between the employer and the employee; that therefore "collective bargaining" should be allowed, and that therefore, and furthermore, the wiser or the better organized should be permitted to combine to control the contract or the labor of the individual. But if we hold thoroughly these two principles before our mind we shall have the key to the understanding of our labor legislation; and if we add to that the third principle against conspiracy, we shall have the key to our more complicated legislation against trusts and blacklists and boycotts, and to an understanding of the more difficult questions, affecting labor in combination and the regulation of labor unions.
That there has been a vast deal of interference, or attempted interference, with these principles in modern American legislation goes without saying. The motive or force behind such legislation has pretty clearly two sources: First, the behest or desire of the "Labor interest" or organized labor, the trades-unions themselves; and when we analyze these and their constituents we shall find that it really means only mechanical or industrial labor, not farm or agricultural labor (which is still in numbers the greatest body of labor in the United States), nor, as yet, domestic service labor, nor what the census calls "personal service," which is probably next in numerical importance, nor clerks; it is a comparatively small class in numbers, this class of skilled mechanical or manufacturing labor, that has brought about this immense mass of legislation of our modern States aimed at improving their own labor conditions; and which therefore, necessarily perhaps, interferes with personal liberty as to the labor contract, or, at least, seeks to regulate it.
The other great influence is rather a motive than a source; we may call it, for want of a better word, the sentimental or the altruistic motive—the moral motive; the forces behind it being mainly of a religious or moral origin, philanthropists, students of ethics, and recently, to a great extent, the women and the women's clubs. The activity of these great forces may be clearly traced through the nineteenth century. It first belonged to the antislavery movement, which directly and historically led to the women's suffrage movement, owing to the fact that at a great antislavery convention in England a woman delegate was refused a seat upon the platform, while her husband, a comparatively obscure person, was recognized as the leading representative from America; and ending of late years in the prohibition movement, to regulate or prohibit the trade in intoxicating liquors, and to exclude the canteen from the army. But in the latest years, in these last very few years indeed, the forces of this category have devoted a large proportion of their "categorical imperative" to labor conditions and the labor contract.
These great forces are entirely impatient of constitutional principles and somewhat indifferent as to the law, while always very desirous of making new statutes themselves. But their combined influence is enormous, so much so that almost any cause to which they devote themselves will in the long run succeed; unless, indeed, their attention is diverted to some other need, for it may be suggested that they are somewhat fickle of purpose. For example, their success in the antislavery movement makes the American history of the nineteenth century; in the prohibition movement they were, in the middle decades of that century, almost entirely successful, and while apparently there was a set-back in the twenty years of individualistic feeling which marked the growth of the Democratic party to an equality with its great rival, the movement of late years seems to have taken on renewed strength, probably on account of the so-called negro question in the South. And while, as to votes for women, they seem to have made no progress beyond the adoption twenty years ago of women's suffrage in four new Western States and Territories, this last year, it must be admitted, the movement has taken on a new strength in sympathy with the agitation in England. There are now already symptoms of a fourth cause—the reform of marriage, divorce and the laws regulating domestic relations, and the control of children. It is possible that these matters will be taken up actively in coming decades, and we, therefore, reserve them for a future chapter; this new effort is itself partly bound up with the women's suffrage movement, and in its latest manifestation—that of proposing legislation preventing men from marrying without permission from the state—it is a most picturesque example of that absence of constitutional feeling we have just adverted to.
Now this freedom-of-contract principle is one which, of course, legislation attempting to regulate the labor contract is peculiarly liable to "run up against"; and it is, for this reason, not only or chiefly because "labor" is opposed to the Constitution or because the courts are opposed to "labor," that so many statutes, passed at least nominally in the interest of labor, have been by them declared unconstitutional. For instance, it is a primary principle that an English free man of full age, under no disability, may control his person and his personal activities. He can work six, or four, or eight, or ten, or twelve, or twenty-four, or no hours a day if he choose, and any attempt to control him is impossible under the simplest principle of Anglo-Saxon liberty. Yet there is possibly a majority of the members of the labor unions who would wish to control him in this particular to-day; and will take for an example that under the police power the state has been permitted to control him in matters affecting the public health or safety, as, for instance, in the running of railway trains, or, in Utah, in labor in the mines. But freedom of contract in this connection results generally from personal liberty itself; although it results also from the right to property; that is to say, a man's wages (or his trade, for matter of that) is his property, and the right of property is of no practical use if you cannot have the right to make contracts concerning it.
The only matter more important doubtless in the laborer's eye than the length of time he shall work is the amount of wages he shall receive. Now we may say at the start that in the English-speaking world there has been practically no attempt to regulate the amount of wages. We found such legislation in mediaeval England, and we also found that it was abandoned with general consent. But of late years in these socialistic days (using again socialistic in its proper sense of that which controls personal liberty for the interest of the community or state) it is surprisingly showing its head once more. In Australasia and more recently in England we see the beginning of a minimum wage system which we must most carefully describe before we leave the subject. There was in the State of Indiana a law that in ordinary unskilled labor in public employment there should be a minimum wage of fifteen cents per hour or twenty-five cents for a man and horse—since declared unconstitutional by Indiana courts: while to-day such labor receives a minimum of two dollars per day in California and Nebraska, one dollar and a quarter in Hawaii, three dollars in Nevada, and "the usual rate" in Delaware and New York,[1] and we are many of us familiar with the practice of towns and villages in New England or New York in passing a vote or town ordinance fixing the price of wages at two dollars per day, or a like sum; but this practice, it must be remarked, is in no sense a law regulating wages; it is merely the resolution or resolve of an employer himself, as a private citizen might say that he would give his gardener fifty dollars a month instead of forty. And, on the other hand, the Constitution of Louisiana provides that the price of wages shall never be fixed by law. Now it will be remembered that the Statutes of Laborers of the Middle Ages, when they regulated the price of wages, led directly to the result that they made all strikes, all concerted efforts to get an increase of wages, unlawful and even criminal; in fact, it may be said that this attempt to bind the workmen to a wage fixed by law was the very cause of the notion that strikes were illegal, which, indeed, was the English common law down to early in the last century. Moreover, when an English mediaeval peasant refused to labor for his three pence a day he might be sent to gaol by the nearest justice of the peace, as, perhaps, some employers would like to do to-day in our South, and which resulted—if not in slavery—in precisely that condition which we call "peonage." Economically speaking, the attempt to regulate wages was, of course, a mistake; politically speaking, it was universally unpopular, and no class was more desirous than the working class themselves of getting rid of all such legislation, which they did in France at the French Revolution, and in England nearly two centuries earlier. Only socialists should logically desire to go back to the system, and in the one modern English-speaking State which is largely socialistic—New Zealand—it is said that the minimum wage law has had the effect that a similar resolve has had in Massachusetts towns: to drive all the old men and all the weaker or less skilled out of employment entirely, and into the poorhouse;[2] for, at a fixed price, it is obvious that the employer will employ only the most efficient labor, and the same argument causes some of their more thoughtful friends to dissuade the women school-teachers in New York from their present effort to get their wages or salaries fixed by law at a price equal to that paid a man.[3]
[Footnote 1: See above, p. 161; below, p. 213.]
[Footnote 2: In the old town of Plymouth the chairman of the selectmen asked what, he should do under vote of town meeting requiring him to pay two dollars a day for all unskilled labor employed by the town. "We have," he said, "about one hundred and twenty old men in Plymouth, largely veterans of the Civil War. We have been in the habit of giving them one dollar and a quarter per day. Under this two-dollar vote we cannot do it without bankrupting the town." He was advised to go ahead and still pay them the dollar and a quarter per day and take the chance of a lawsuit, which he did, and so far as the writer knows no lawsuit has ever been brought; but in all cases that would not be the result.]
[Footnote 3: This is law in Utah; but nevertheless a letter from a State government official informs me that women are willing to [and do?] work for a smaller salary.]