Some Equivocal Rights of Labor

THE American working man is a pretty good citizen on the whole, and except on rare occasions is law-abiding enough to suit any but the over-fastidious devotee of law and order. Even the best of us — from the trust magnates down — find at times some law or decision which we try to steer around in some peaceable way, and the real difference between the rest of us and the working man in his occasional ebullitions against government by injunction is a matter of manners rather than morals. It is a difference of method rather than purpose. While we adjust our course to avoid, by a safer and more circuitous route, the big rock of statutory prohibition to get at what we want in the forbidden waters beyond, the workingman sometimes tries to push over the rock itself, and comes to grief in so doing. This is what constitutes in the public mind the greater part of the so-called “lawlessness of labor.”

To the large public of the well-fed who live by their wits and not by the direct application of physical labor, the grumbling of the laborer against the law seems delightfully simple. To this public the whole grievance of labor, spelled with a capital, is that the law forbids the heaving of bricks at scabs. This legal prohibition seems to us the most comfortable of doctrines. The law of brick-throwing has had so much discussion, and so many able efforts have been made, not only by the judges, but by distinguished writers and public men, to show the laborer wherein he is wrong in so doing, that any extended discussion here of that subject would be superfluous. What the writer hopes to do is to cover some matters which far more vitally affect the laborer’s attitude toward the law and the courts, and which, more than the “government by injunction” fetich, constitute those industrial problems of labor, which must find sometime an ultimate solution in law. They are matters of which the general public has little knowledge, and which, if better known, would insure perhaps a more sympathetic attitude toward the working man’s point of view.

Stated as concretely as possible, the principal difference between the working people and the courts lies in the marked tendency of the courts to guarantee to the workman an academic and theoretic liberty which he does not want, by denying him industrial rights to which he thinks he is ethically entitled. His grievance is that in a multitude of instances the courts give what seems to him counterfeit liberty in the place of its reality.

A few illustrations of this will make the meaning clear. Some years ago, in Buffalo, N. Y., a girl about eighteen years old, named Knisley, was employed in the factory of one Pratt. She was at work on very dangerous machinery, which had no safety guards to protect her from injury, in spite of a statute of the state requiring such machinery to be guarded. The girl got her hand caught in the revolving wheels, and it was crushed and torn so that it had to be cut off at the shoulder. This statute which required these safety guards on this machinery had been passed at the urgent insistence of New York labor unions so that working men and women, by such additional precautions enjoined upon their employers, should have safer places in which to do their work. This employer, Pratt, had violated this humane statute, and by this violation this young girl lost her arm. She sued Pratt for damages, and got a verdict from a jury in her favor. The highest court of New York took away that verdict and dismissed her case. The court said that the girl fully understood the danger to which her employer’s violation of law had exposed her. She had the “right,” it declared, to assume the risk of injury and keep at work at this machine, notwithstanding the danger to which she was exposed. The judges said that because she kept at work, knowing the danger, she was presumed to have agreed with her employer to waive any claim of damages from him in case she was hurt. She had a right to do this, notwithstanding the requirements of the statute which ordered him to protect her safety. Instead of giving this girl the actual and substantial right which the statute provided for her, — instead of declaring that she had a right to work in safety, — they gave her an academic right, the right to work in danger, to accept danger and suffer by it without redress.

In a state in which, every year, there are more than twice as many persons killed in industrial establishments as were killed in the Spanish war; in which, in addition to the killed, forty thousand employees are annually crippled, maimed, or wounded, such a decision, guaranteeing to working men and women the right to endure unnecessary danger, and effectually denying their right to safety in their work, is bound to create some dissatisfaction among the working classes. Labor’s right to get killed, guaranteed by decisions of which this New York case is but a characteristic example, is not highly esteemed by the people to whom this guarantee is given. The counterfeit liberty is no more satisfactory to its recipient than is the counterfeit dollar.

The working man’s standpoint is perhaps more likely to receive sympathy when his safety is not merely a matter of his own concern, but involves the safety of the public as well. A very recent Texas case of this kind affords a good illustration of the difference in the eyes of the law between the locomotive engineer’s right to safety and that of the public traveling on his train. This case, though tried in Texas, involved the construction and application of a statute of Arizona enacted to prevent railroads from overworking their employees; to protect not only the railway employees from physical exhaustion but the public from accidents occasioned by that exhaustion. This statute prohibits the employment of a certain class of railway employees, including locomotive engineers, for more than sixteen consecutive hours, without an allowance of nine hours for rest. It is a statute remarkable not so much for what it prohibits as for what it permits. In 1903, a locomotive engineer on the Atchison, Topeka, and Santa Fe, named Smith, after working in Arizona for seventeen consecutive hours, started for his home to rest and sleep. He was sent for immediately by the master mechanic, and, against his protest that he needed rest, was set at work again, the master mechanic assuring him that the run would not take more than five or six hours at the most. But the run lasted fourteen hours more, and after thirty-one hours of continuous service, unavoidable drowsiness came over the engineer. He slept in his cab with his train on the main line of the railroad. There was a collision near El Paso, Texas, with another train, by which he and others were hurt. The highest court in Texas says that the injuries of the engineer were his own fault, and that, while the railroad was liable to passengers, it was not responsible to the engineer. It says that the violation by the railroad of this reasonable statute, in overworking the engineer beyond human endurance, “ would not excuse the contributory negligence of Smith” (the engineer), “which arose from his working for such a length of time that he was unfitted for business. He knew his physical condition far better than the railroad company could know it, and cannot excuse his carelessness in falling asleep on his engine, while it was standing on the main track, by the fact that he was required by the master mechanic to take out a train after he had been at work for seventeen hours.”

The logic of this decision, like that of hundreds of others of similar character, is absurdly simple, and to the workman absurdly unjust. The reasoning of the court is that this man could have refused to work if he was tired, and could have taken his chances of an almost certain discharge from employment. The decision is simply one of a thousand judgments which declare to the workman what is to him a worthless and academic liberty,— a liberty which exists without law or the declaration of courts, — the right to lose his job. It scarcely needed a legal decision to tell this engineer that he could throw up his job if he did not want to work thirtyone hours on a stretch. The law the workman wanted was a law which would place reasonable limitation on the duration of his labor without costing him his position. If the only way he could derive benefit from this statute, which forbade his road to overwork him, was to lose his job, it was and is of as much practical use to him and his fellows as Pat’s insurance: “It’s foine, but I have to be dead to get it.”

The enormously increasing number of railroad accidents in this country, compared with other countries, has attracted much attention. The greater number of deaths thus occasioned are of railway employees, but there are enough passengers killed every year to make the legal status of the railway employee, as regards his right to safety while at work, important to the public, as well as to him and his fellows. The safety of the railroad employee and the passengers are too closely bound together to be separated in the eyes of the law. When the collision comes, the engineer may die first, but the passengers are there in the cars right behind him.

These two illustrations might be multiplied, but further examples would add little. The workman does not want the vain liberty so often declared to him by the courts, of throwing up his job and looking for another. He does not take kindly to the judicial affirmations to him of the right to be maimed without redress, or to be killed, by his employer’s indifference to his safety. His grievance is not directly with the courts and law. The workman knows little about the law, and most of what he understands he does not like. He objects to the economics on which these killing decrees are rendered against him. He does not call it economics, but at the bottom the real trouble from the workman’s point of view is the blindness of courts, which do not seem to notice or to understand the social and economic conditions under which he has to work. For the law still embodies in these decisions an outworn philosophy, the old laissezfaire theory of extreme individualism. This theory resolutely closed its eyes to the common, obvious, social, and economic distinctions between men, considered either as individuals or as classes, and with 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 stay, if he chose to stay he must take the possible consequences of personal injury or death.

To the working man of to-day this theory embodies the “ liberty of barbarism. ” — the “freedom” of the stone age. This freedom is to him not liberty, but injustice.

The history of the modern trade union movement is comprised for the most part in the workman’s struggle for three morally sound economic rights, — the right to fair pay, the right to fair hours, the right to decent conditions under which to perform his work. No inconsiderable amount of violence, and sometimes bloodshed, occasioned by the struggles for these rights, has been due to the fact that the law has not recognized them as legal rights, but as a substitute for them has “ guaranteed” the worker their precise opposites as ironic forms of personal liberty.

There is small comfort for the workers who have secured by strenuous efforts the passage of a law reducing the number of hours of their labor, by forbidding their employers to require more, to be told by the courts that the constitution “guarantees” them the right to work fourteen hours when they want to work eight, and that the statute which they had secured by so much effort is unconstitutional because it interferes with their “freedom of contract.” The right the laborer sought by his statute was the right to leisure. The right the court so often guarantees him in its stead, and by its destruction, is the right to work unlimited hours under the stern laws of necessity. The right to work harder and longer than he desires, or than humanity should require, is called a property right, and the statute taking away that right is one, they declare, which takes away liberty or property “without due process of law.” “ Oh, wretched man that I am,” says St. Paul, “who shall deliver me from the body of this death ? ” The laborer with his constitutional body of death groans also, and wonders if the time will ever come when the right to leisure — the right to reasonable freedom from toil — will become a “property right,” and be recognized by the law, as it is by the workman himself, as an essential part of that hackneyed phrase, “life, liberty, and property,” which is not to be taken from him.

The guaranteed right to work with an over-sweated brow for his bread is not accepted by the workman as a great judicial ark of liberty. To get rid of this liberty he organizes in increasing numbers, and strikes and lockouts follow, so that industry shall recognize and give to him the liberty which the law has refused. He says if the law will not give him the right to reasonable leisure, he will take it for himself. When the United States Supreme Court, a few months ago, declared the bakeshop Eight Hour Law unconstitutional, and guaranteed to the bakers in the underground workshops of New York the right to work fourteen hours a day, under the frightful conditions in which their work has to be done, strikes of bakers followed. Such strikes seem to follow such decisions.

One of the rights, economic and moral, perhaps, but not yet legal, for which workmen have been struggling for a quarter of a century, is for decent conditions under which to do their work. Some progress has been made in certain directions, but the main work is yet undone. How indifferent their success has been in gaining legal support for the safety of that work has been indicated in an earlier part of this paper. The danger of accidents, however, usually can be avoided, by constant vigilance. But the danger to health, life, and character, from having to work in the unsanitary hovel, the badly lighted, unventilated, and unclean tenement; the destruction of the home by those remorseless laws of industry which seem to compel the helpless worker in the sweated trades to turn his home into a factory, are incalculable. A law which guarantees to the worker a right to destroy his own home is as valuable to him as one wdiich should guarantee his right to commit suicide. The law, however, forbids the quick process of self-inflicted death.

There is among the yellow volumes of the New York Court of Appeals Reports a decision rendered twenty years ago, which means to the worker in the tenements, in the sweated trades, precisely what the Dred Scott decision meant to the slave, — a guarantee of bondage. On its face it is a guarantee of liberty. Read by any business man or broker, by a reader unfamiliar with the tenement problem, by any banker sensitive to property rights, it is a splendid judicial utterance in the defense of fundamental individual rights. By such readers this famous decision cannot be read without what Rufus Choate would call “ a thrill of sublimity.”

Read by the tenement worker or sweated toiler in the needle trades, this same decision is like a voice which sentences him to penal servitude for life. The case referred to is the famous Tenement House Cigar case, “In Re Jacobs.” It declares unconstitutional a sweeping, badly drawn statute, enacted through the efforts of a cigar-makers’ union, which prohibited the manufacture of cigars and the preparation of tobacco in any form in tenement houses. The cigar makers knew what the conditions were in which they had to work in their own homes. The statute which they had drawn was, from their point of view, for the protection of the tenement worker’s home; was to be the entering wedge for further enactments of the same character. Sweeping and broad as were the provisions of the statute, the decision of the court against its constitutionality was equally sweeping.

One of the most intelligent students of our social problems, a woman whose life has been chiefly spent in studying and bettering the condition of the poor and who is thoroughly familiar with the conditions of which she writes, says in a recent book of this Jacobs case: “To the decision of the Court of Appeals in the case, In Re Jacobs, is directly due the continuance and growth of tenement manufacture and of the sweating system in the United States, and its present prevalence in New York. Among the consequences and the accompaniments of that system are congestion of the population in the tenement districts, the ruin of home life in the dwellings used as workrooms, child labor in the homes, endemic diseases (especially tuberculosis) due to the overcrowding and poverty of skilled workers, the chronic pauperism of thousands of skilled working people during a part of the year in a series of important trades; insanity due to overwork followed by anxiety over a prolonged period of unemployment, and suicide — the selfinflicted death of a garment worker being of almost daily occurrence in New York and Chicago.”¹ These harsh and bitter words are — let us remember — written of a decision which guarantees to the worker the right to work in his own home!

Other illustrations to show the reason for the attitude of the workman toward the courts might be given, but are not needed. They would simply afford further data to emphasize the same point, — the apparent fundamental difference between the worker and the judge on the very definition of liberty. It need not be claimed that the worker’s point of view is absolutely correct; it need not be asserted that the things he has asked from the courts and has been refused have all been such as in the long run would be best for him. The whole point to be noticed is simply this: that by the working class ideal of liberty a special demand is made on the law, — a demand more frequently refused than granted. What it demands from the courts is the recognition and protection, and at times the creation, by law of the worker’s economic rights. The law, on the other hand, guarantees to him the ancient and largely negative individual liberty, freedom from legal restraints, the right to do any unforbidden thing he wants to,— if he can,— and tells him to shift for himself for his economic rights. The worker’s discontent with the law lies in the fact that it guarantees him individual, and not social or industrial, freedom.