At all events, legislation may be aimed against sweat-shops which in any sense resemble factories—that is, where numbers of persons not the family of the occupier are engaged in industrial labor; so in Pennsylvania it has been extended to jurisdiction over shops maintained in the back yards of tenements; while in most States the statute applies to any dwelling where any person not a member of the family is employed, and general legislation against sweat-shops already exists in the twelve north-eastern industrial States from Massachusetts to Missouri and Wisconsin, leaving out only Rhode Island.
The Massachusetts law as at present forbids work upon clothing except by members of the family in any tenement without license, and thereupon subjects the premises to the inspection of the police, and registers of all help must be kept. Whoever offers for sale clothing made in a tenement not licensed must affix a tag or label two inches long bearing the words "Tenement Made," with the name of the State and city or town in which the garment was made. Moreover, any inspector may report to the State board of health that ready-made clothing manufactured under unhealthy conditions is being shipped into the State, which "shall thereupon make such orders as the public safety may require."[1] In New York the law applies to the manufacture of many articles besides clothing, such as artificial flowers, cigarettes, cigars, rubber, paper, confectionery, preserves, etc. A license may be denied to any tenement house if the records show that it is liable to any infectious or communicable disease or other unsanitary conditions. Articles not manufactured in tenements so licensed may not be sold or exposed for sale, and there is the same law as in Massachusetts as to goods coming in from outside the State, and there is the same exemption of apartments occupied by members of the family, and even then it appears that they are subject to the visitation of the board of health and must have a permit. The Pennsylvania law is similar to the New York law, and in addition, all persons are forbidden to bargain for sweat-shop labor, that is, labor in any kitchen, living-room, or bedroom in any tenement house except by the family actually resident therein, who must have a certificate from the board of health. The Wisconsin law apparently applies to persons doing the work in their own homes, who must have a license like anybody else, and the owner of the building is liable for its unlawful use. The Illinois and Maryland laws are similar to the New York law, while the Michigan statute resembles that of Wisconsin, apparently applying to members of the family as well. The Missouri law forbids the manufacture of clothing, etc., in tenements by more than three persons not immediate members of the family, while the New Jersey and Connecticut statutes content themselves with making such manufacture by persons not members of the family subject to inspection.
[Footnote 1: Massachusetts R.L., 106, secs. 56 to 60 inclusive.]
It is a curious commentary that the very dream of the social reformers of only twenty years ago is so rudely dispelled by the march of events; for in the late nineties it was the hope of the enthusiast, particularly the student in electrical science, that the factory system might in time be done away with, and by the use of power served from long or short distance over wires to a man's own habitation, all the industries of manufacture might be carried on in a man's own home—just as used to be the case with the spinners and weavers of olden time. Far from being a hope, it turns out that this breeds the very worst conditions of all, and the most difficult to regulate by law. For modern homes for the most part are not sanitary dwellings in the country, but single floors or parts of floors in huge tenement houses in great cities. It is probable to-day, therefore, that there is a perfect reversal of opinion, and that the social reformer now dreams of a world where no work is permitted in the home, other than ordinary domestic avocations, but all is compelled to be done in factories under the supervision of public authorities—a splendid example of the dangers of hasty legislation; for had we carried into law the eager desire of the reformers of only twenty years since, we should, it appears, have been on a hopelessly wrong track.
It should be noted, however, that the reform of conditions is very largely arrived at by a different path—that of the building laws in our cities. No more arbitrary rule exists to-day or was ever in history than the despotic sway of a board or commission created under modern police-power ideas. In everything else you have a right to a hearing, if not an appeal to the common-law courts and a jury; but the power of a building inspector is that of an Oriental despot. He can order you summarily to do a thing, or do it himself; or destroy or condemn your property; and you have no redress, nor compensation, nor even a lawsuit to recover compensation. Therefore, if the sweat-shop reformers may not constitutionally regulate the conditions and business of sweating so far as they would like to go, they can turn about and directly regulate the actual building of residences where the trade is carried on. They can require not only so many cubic feet of air per person in the sweat-shop, but so many cubic feet of air per person in every bedroom; as Ruskin said, not only, of grouse, so many brace to the acre, but of men and women—so many brace to the garret. A California law[1] once made it a criminal offence for any person to sleep with less than one thousand feet of air in his room for his own exclusive use! It is indeed a crime to be poor.
[Footnote 1: See Ah Kow, Nunan, 5 Sawyer, 552.]
This legislation to reform sweat-shops is a field which has been almost entirely cultivated by what I have termed the moral reformers, with little or no help from organized labor. One's observation is that organized labor has been mainly concerned with the price of wages, the length of hours, and with the closed shop; it has devoted very little of its energies to factory or trade conditions, except, indeed, that it has been very desirous of enforcing the union label, on which it asserts that union-made goods are always made under sanitary and moral conditions, and implies that the goods of "scab" manufacturers are not so.
The usual sweated trades in this country are the manufacture of clothing, underwear, tobacco, and artificial flowers. There has also been considerable regulation of laundries and bakeries, but not because they are what is commonly called sweated trades.
The bulk of factory legislation is too vast for more than mention in a general way. It fills probably one-fourth in mass of the labor laws of the whole country, and applies in great and varying detail to the general condition of factories, workshops, and in most States to large stores—department stores—using the word in the American sense. It may be broadly analyzed as legislation for the construction of factories, for fresh air in factories, for general sanitary conditions, such as the removal of dust and noxious gases, white-washing, sanitary appliances, over-crowding, stair-cases, fire-escapes, and the prohibition of dangerous machinery. As has been said, it was begun in Massachusetts in the fifth decade of the last century, based originally almost entirely on the English factory acts, which were bitterly attacked by the laissez-faire school of the early nineteenth century, but soon vindicated themselves as legitimate legislation in England, although not even there—still less in our States—have we gone so far as the Continental countries.
Closely connected with this may be mentioned that vast domain of law which is known as employers' liability. Under the old strict common-law rule, a servant or employee could never recover damages for any injury caused in whole or in part by his own negligence, by the negligence of a fellow servant or even by defective machinery, unless he was able to prove beyond peradventure that this existed known to the employer and was the sole and direct cause of the accident. As is matter of common knowledge, the tendency of all modern legislation, particularly the English and our own, has been to chip one corner after another off these principles. The fellow-servant rule has been very generally abolished by statute, or in many States fellow servants have been defined and divided into classes so that the master is not relieved of liability when the injury to the servant is caused by the negligence of a servant not in actual fact his fellow, i.e., employed with him in his own particular work. In like manner the exemption for contributory negligence has been pared down and the liability for dangerous or defective appliances increased, practically to the point that the master becomes the insurer of his machinery in this particular. The recent English statute goes to the length of putting the liability on the employer or on an employment fund in all cases.