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.