Thus we find that Maitland's contribution, a little more than half of the book, deals with early dooms, the assizes of Henry II, Glanvil, Bracton, the jury, Magna Charta, "The English Justinian's" work, the omnipotence of Parliament, chancery; and later Montague's essays emphasize legislation and procedural reform from the seventeenth to the nineteenth centuries. These form a helpful outline which can be run through in two or three hours as a preparation for further work. The limitations of the book are best indicated by saying that "tort" does not appear in the index, and that the two appearances of "contract" refer to a short note on Anglo-Saxon contract, which had no real existence, and to a few modern statutes affecting bargains in the nineteenth century. As the editor indeed says, the collection is "untechnical." But it is just this that prevents the book from being in comparison with Jenks' Short History of English Law, or even Maitland's Forms of Action, "the best available introduction to English legal history."

JOSEPH WARREN.

GERMANY'S VIOLATION OF THE Laws of WAR, 1914-15. Compiled under the
auspices of the French Ministry of Foreign Affairs. Translated by J. O.
P. Bland. New York: G. P. Putnam's Sons. 1915. pp. xxxvi, 346.
THE PREVENTION AND CONTROL OF MONOPOLIES. By W. Jethro Brown.
New York: E. P. Dutton and Company. 1915. pp. xix, 198.

JUDICIAL INTERPRETATIONS OF THE LAW RELATING TO WORKMEN'S COMPENSATION. By John Chartres. London: Butterworth and Company. 1915. pp. 1, 753.

THE PROTECTION OF NEUTRAL RIGHTS AT SEA. Documents on the Naval Warfare. With an introduction by William R. Shepherd. New York: Sturgis and Walton Company. 1915. pp. x, 129.

LAW AND ITS ADMINISTRATION. By Harlan F. Stone. New York: Columbia University Press. 1915. pp. viii, 232.

BELGIUM, NEUTRAL AND LOYAL. THE WAR OF 1914. By Emile Waxweiler. New York: G. P. Putnam's Sons. 1915. pp. xi, 324.

HARVARD

LAW REVIEW

VOL. XXIX

FEBRUARY, 1916

No. 4

HOURS OF LABOR AND REALISM IN CONSTITU

THE

TIONAL LAW*

HE Massachusetts Supreme Court was called upon recently to consider the constitutionality of the following statute: "Employees in and about steam railroad stations in this Commonwealth designated as baggage men, laborers, crossing tenders and the like, shall not be employed for more than nine working hours in ten hours' time; the additional hour to be allowed as a lay off."

The increasing demand for shorter hours of labor throughout the industrial world, the likelihood that such demand will receive legislative recognition, the nation-wide importance of the attitude of the judiciary toward such legislation; conversely, the attitude of public opinion upon the continued exercise by the courts of their traditional power under the American constitutional system all these considerations, and more, justify a constant critique within the profession of the point of view, no less than the explicit factors, which control judicial decisions upon social and industrial legislation.1

The question before the Massachusetts Supreme Court was not a new question. Necessarily, therefore, the court had to consider

* For laborious help in the preparation of this article I am indebted to one of my students, Mr. Howard F. Burns.

1 Valuable contributions have been made in recent years which will be referred to later, particularly the admirable papers of Professor Ernst Freund, "Limitation of Hours of Labor and the Federal Supreme Court," 17 GREEN BAG 411; Judge Learned Hand, "Due Process of Law and the Eight Hour Day," 21 HARV. L. REV. 495; and Professor Roscoe Pound, “Liberty of Contract," 18 YALE L. J. 454.

the applicable precedents, and the legal thinking which was embodied therein.? What then was the legal background? It will be serviceable perhaps briefly to summarize the state of the authorities dealing with regulation of the hours of labor. Such a summary will tell a useful tale of legal history; it will do more - it may guide us not a little in the solution of present-day constitutional problems.

3

For the purpose of legal analysis, these cases fall into three groups: (a) regulation of the labor of women and children; (b) regulation of labor in dangerous or peculiarly unhealthful employments; and (c) regulation of labor in industry generally.

(a) REGULATION OF LABOR OF WOMEN AND CHILDREN

1876 Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383, sustained a law prohibiting the labor of women and children for more than sixty hours per week in manufacturing establishments. The statute was sustained as a matter of course. No reference whatever was made to the Fourteenth Amendment and counsel was apparently unable to "refer to any particular clause of the [Massachusetts] Constitution to which this provision is repugnant" (p. 384).

1895 Ritchie v. People, 155 Ill. 98,4 invalidated an eight-hour law for women as "a purely arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties" (p. 108).

2 This paper will concern itself wholly with the validity of the regulation of hours of labor as a problem in what Mr. Justice Holmes calls the "apologetics of the police power." Therefore, objections to the specific statute under consideration because (1) it fails to make provision for emergencies, (2) it is a denial of the equal protection of the laws by reason of arbitrary classification, and (3) it interferes with a field taken over by Congress in the Hours of Service Act of March 4, 1907, or special arguments in its favor, based (a) on the power to amend corporate charters, and (b) on the fact that a special obligation may be imposed on public-service companies, are all put on one side.

* Cases involving the validity of legislation as to hours of labor upon public works or work done for the public are not considered. All recent important authorities now sustain such legislation, not as an exercise of the police power, but as an assertion by the state of its right to regulate the conditions under which public work shall be done. Atkin v. United States, 191 U. S. 207 (1903); People v. Crane, 214 N. Y. 154, 108 N. E. 427 (1915), affirmed, 239 U. S. 195 (1915); Heim v. McCall, 214 N. Y. 629, 108 N. E. 1095 (1915), affirmed, 239 U. S. 175 (1915).

4 40 N. E. 454.

1902 Wenham v. State, 65 Neb. 394,5 sustained a sixty-hour per week law for women on the ground that "women and children have always, to a certain extent, been wards of the state"; and that while "the employer and the laborer are practically on an equal footing... these observations do not apply to women and children" (p. 405).

1902 State v. Buchanan, 29 Wash. 602,6 sustained a ten-hour law for women in mechanical and mercantile establishments.

"It is a matter of universal knowledge with all reasonably intelligent people of the present age that continuous standing on the feet by women for a great many consecutive hours is deleterious to their health. . . While the principles of justice are immutable, changing conditions of society and the evolution of employment make a change in the application of principles absolutely necessary to an intelligent administration of government. In the early history of the law, when employments were few and simple, the relative conditions of the citizen and the state were different, and many employments and uses which were then considered inalienable rights have since, from the very necessity of changed conditions, been subjected to legislative control, restriction, and restraint" (p. 610).

1907 People v. Williams, 189 N. Y. 131,7 declared invalid a statute prohibiting night work of women because "it is, certainly, discriminative against female citizens, in denying to them equal rights with men in the same pursuit" (p. 135).

8

1907 Burcher v. People, 41 Colo. 495, nullified an eight-hour law for women and children because (1) under the Colorado Constitution the legislature must specifically designate what pursuits are unhealthful; and (2) even if the court had power to pass on the issue "the laundry business must be considered healthful; for counsel themselves, in their stipulation of facts, on which the record shows the cause was decided, are in accord that such occupation is healthful" (p. 504).

1908 Muller v. Oregon, 208 U. S. 412, sustained the constitutionality of a ten-hour law for women in any mechanical establishment or factory or laundry.

"The legislation and opinions referred to ...

may not be, technic

ally speaking, authorities, and in them is little or no discussion of the

constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil" (p. 420).

"The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all" (p. 422).

1910 Ritchie & Co. v. Wayman, 244 Ill. 509,9 sustained a tenhour law for women in any mechanical establishment, factory or laundry. A heroic effort is made to distinguish the first Ritchie case from the second Ritchie case. It is true that one was an eighthour law and the other was a ten-hour law, but the two cases are, in fact, irreconcilable in their underlying point of view.

1914 Sturges v. Beauchamp, 231 U. S. 320, sustained the Illinois Child Labor Law as an exercise "of the protective power of government."

1914 Riley v. Massachusetts, 232 U. S. 671, sustained a Massachusetts fifty-four-hour per week statute.

1914 Hawley v. Walker, 232 U. S. 718, sustained an Ohio ninehour statute.

1915 Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385. In these two able opinions by Mr. Justice Hughes the United States Supreme Court sustained the extremest regulation of hours of labor to date California statutes limiting the labor of women in certain pursuits to forty-eight hours per week.

"It is manifestly impossible to say that the mere fact that the statute of California provides for an eight-hour day, or a maximum of fortyeight hours a week, instead of ten hours a day or fifty-four hours a week, takes the case out of the domain of legislative discretion. This is not to imply that a limitation of the hours of labor of women might not be pushed to a wholly indefensible extreme, but there is no ground for the conclusion here that the limit of the reasonable exertion of protective authority has been overstepped" (p. 382).

1915 People v. Schweinler Press, 214 N. Y. 395.10 The Court of Appeals sustained a statute prohibiting night work for women and

9 91 N. E. 695.

10 108 N. E. 639.