which alone could justly weight the scales. The men upon the bench needed for their guidance the empirical testimony of the working woman's physician, the factory inspector, and the economist. They needed, in a word, to know the facts.

For some years previous to the Williams decision, many persons interested in labor legislation, and particularly the Consumers' League, had been following in detail the influence of successive court decisions.* In an earlier case, involving the validity of certain sections of the New York child labor law,† the writer of these pages had been called upon to furnish the presiding judge with testimony from the New York Factory Inspectors' reports, relative to the social value of such legislation.

Before the Williams case had been carried to the New York Court of Appeals, the writer had made an effort to obtain some expressions of opinion from physicians, on the subject of women's employment at night, comparable with the findings of European physicians. It was hoped that some prominent medical men in New York might be induced to state their views of the physical injuries incident to industrial night work, just as in 1892 a group of distinguished and public-spirited British physicians had presented to Parliament a memorial on the injuries from overlong hours in shops, in support of Sir John Lubbock's Early Closing Bill.§

But from among ten prominent New York physicians who were approached, only two were willing to express themselves publicly. One of these was a physician grown old in

*See Kelley, Florence: Some Ethical Gains Through Legislation. New York, Macmillan, 1905. Goldmark, Josephine: The Necessary Sequel of Child Labor Laws, Amer. Jour. of Sociology, pp. 312-325. Nov., 1905; Workingwomen and the Laws. Annals of the American Academy of Political and Social Science, pp. 261-276. Sept., 1906.

†The City of New York v. Chelsea Jute Mills. 43 Misc. 266. (1904). The law had been declared unconstitutional by the Appellate Division of the New York Supreme Court, two out of five judges dissenting.

§ British Sessional Papers, 1892. Vol. XII, p. 238. Among the signers of the memorial are such wellknown names as Sir Andrew Clark, Sir Richard Quain, and 298 others. See Part II of this volume. p. 515.

service whose life-long practice had made him as familiar with the dire effects of industrial overwork as of excessive idleness. The other was a younger man whose active part in the tuberculosis campaign had brought forcibly to his notice some of the contributory causes of overstrain among working people. The striking fact in the refusal of the other physicians to share in any arraignment of the night shift or late overtime work for women, was their general remoteness from the common facts of what seemed almost like a different order of existence. The speed, the strain, and the long hours of factory life belonged to a chapter of human life wholly outside of their own crowded and specialized lives. Not one of them raised the objection that a public expression of medical opinions might be construed as an attempt to prejudice the case. They were unacquainted with the facts. at first hand and, indeed, for the most part, doubted their existence.

This modest attempt, then, failed. But when, in 1907, the decision of the Court of Appeals in the Williams case explicitly stated the court's inability to see the purpose of the law, it became more than ever apparent that a new emphasis was needed in the defense of labor legislation, and we awaited the opportunity in which to put this belief into practice.

THE OREGON CASE AND A NEW LINE OF DEFENSE. Such an opportunity offered in the very same year. A laundryman was arrested for violation of the Oregon law fixing a ten-hour day for women employed in factories and laundries. The validity of the law was affirmed by the Oregon courts, and in December, 1907, an appeal was taken to the United States Supreme Court at Washington. Here, then, was an opportunity to present the real issue to the highest court in the land, concerned for the first time in its history with a statute limiting the workday of adult women. By good fortune, the active interest of a distinguished lawyer* Mr. Louis D. Brandeis of Boston, who has given his invaluable services unpaid in these cases.

was enlisted and he proposed to put these issues before the court in a new way. His argument and brief marked a radical departure in the defense of labor laws. It confined itself to the tangible human elements involved-health, welfare, and economic efficiency.*

In a brief of more than 100 pages, he devoted two to the legal aspects of the case, and over 100 to a new kind of testimony-mankind's experience, physical and moral, with respect to women in industry and the duration of their working hours. The document was made up from the accumulated mass of British and Continental factory inspectors' reports, commissions and enquêtes, as well as the observations of medical men and economists. It was well received by the court, which in its decision upheld the validity of the Oregon law. Quoting from the new empirical evidence contained in the brief, the court stated that it "took judicial cognizance of all matters of general knowledge," thus in a single phrase warranting the new emphasis upon practical data.†

The decision in the Oregon case was indeed no narrow victory. It was the most sweeping decision ever rendered by the federal Supreme Court in relation to working hours. It was not confined to the consideration of the ten-hour day or to a working day of any particular length. It left to the states the liberty to determine what working hours were wholesome and reasonable. It went far beyond the statute at issue, which dealt with the employment of women in factories and laundries, and looked towards the protection of women in other employments. In a word, the highest court of the nation rejected the fiction of the free contract as regards the working woman and declared that "her physical nature and the evil effects of overwork upon her and her future children justify legislation to protect her from the greed as well as the passion of men." The new method of defense had amply justified itself.

* Supreme Court of the United States, October Term, 1907. Curt Muller v. the State of Oregon. Brief and Argument for Defendant by Louis D. Brandeis and Josephine Goldmark.

† See Part II,
p. 558.

THE SECOND RITCHIE CASE. It was again to be put into practice and again to be justified in the following year (1909), immediately after the auspicious Oregon decision had in principle reversed the earlier Ritchie decision of the Illinois Supreme Court. The way was now open for laws protecting women from overwork, and many states enacted such legislation. Among others, the Illinois legislature of 1909 provided a ten-hour day for women employed in laundries and factories. Hence, fourteen years after the first Ritchie decision, a new law was carried up to the Illinois Supreme Court for its adjudication.*

A wholly new bench of judges were sitting in the case. The widespread public curiosity throughout Illinois as to the outcome of this case, bore witness to a new recognition of the large issues at stake, not only to women in industry, but to the state. The court in sustaining the ten-hour law was not deterred as the same court had been fourteen years before by the freedom of contract theory. All that body of "general knowledge" which the federal judges had taken into cognizance, was again admitted to carry its due weight. In a single illuminating sentence the Illinois court also responded to the new emphasis upon the substantial and substantiated facts, remarking, "what we know as men we cannot profess to be ignorant of as judges.”

3. THE DISTINCTIONS OF SEX

Now among these facts known to all men and presented to the court, were the ill effects of industrial speeding, strain, and the like, upon working women, qua women. Their physical organization, the greater morbidity of working women compared with men in the same occupations, and the dependence of future generations upon the health of women, all had been dwelt upon to justify the legal restriction of their hours. This was because the earlier decisions, overthrowing the validity of women's labor laws, had denied any • Ritchie & Co. v. Wayman, 244 III. 509 (1910).

special protection to women "on the mere fact of sex." Women were citizens, hence their contractual powers could not be disturbed. Indeed the New York Court of Appeals went so far as to say in the face of civilized precedent, that "an adult woman is not to be regarded in any other light than the man is regarded, when the question relates to the business pursuit, or calling."

This specious argument and the alleged impossibility of differentiating between men and women was, indeed, long an obstacle in the way of securing women's laws. Thus in England between 1874 and 1901 the factory acts were in the main opposed by an important wing of the women's rights party. Superficially viewed, the great movement to obtain for women, in all fields, rights from which they have been debarred, might appear inconsistent with the effort to protect one sex as contrasted with the other. But this is a fundamental misconception. It ignores the fact that protection of health has never been held a bar to the efficiency of men as citizens.

It has yet to be suggested, for instance, that the miners of 13 states-Arizona, California, Colorado, Idaho, Maryland, Missouri, Montana, Nevada, Oregon, Oklahoma, Utah, Washington, and Wyoming-are discriminated against, because the state restricts their working hours to eight in one day* for the explicit purpose of protecting the health of its citizens. It has yet to be suggested that the interstate railroad telegraphers are less valuable as citizens than any other men because Congress, in 1907, restricted their work to thirteen hours by day and nine hours by night. This statute and similar restrictions in many states were enacted nominally to safeguard the traveling public. But its only excuse for being is the effect of excessive hours upon the operative's efficiency. These restrictions upon men's working hours have never interfered with their value or dignity as citizens. Why then, should similar restrictions

*Ten hours in one day in Maryland, applying to Allegany and Garrett

counties.