problem-individual and collective bargaining, wages, hours, unemployment, safety and health, social insurance, and administration-it endeavors not so much to expound technical questions of legality as to sketch the historical background of the various labor problems, indicate the nature and extent of each, and describe the legislative remedies which have been applied. Throughout it is the principles of labor law, not the details which may change from legislature to legislature, which are emphasized. And this procedure has been followed because in a democracy it is the people themselves whose collective opinion finally determines what the laws shall be and how effectively they shall be enforced. The work is intended to be both critical and constructivecritical in that it points out the good and bad features of the statutes, constructive in that it shows how, in the light of experience, the good is being strengthened and the bad remedied. Finally, it is in full recognition that a law is really a law only to the extent to which it is enforced that each chapter emphasizes efficient administration and that the closing chapter is entirely devoted to this complex and allimportant problem. In assembling facts and preparing chapters, assistance has been given by many valued co-workers, including E. E. Witte, Olin Ingraham, David J. Saposs, Anna Kalet, Margarett A. Hobbs, and the following students: W. H. Burhop, Mark Greene, Ora Harnish, A. P. Haake, Harry Jerome, Gladys Owen, and Stewart Schrimshaw. For painstaking reading of manuscript and proof, acknowledgment is due to Jean M. Douglas and Solon De Leon. Our further thanks are extended to the following persons, to whom various chapters were submitted and who have given valuable criticisms and suggestions for improvement: Richard T. Ely and H. W. Ballantine of the University of Wisconsin, Ernst Freund of Chicago University, Edwin V. O'Hara of the Oregon Industrial Welfare Commission, Thomas I. Parkinson and Joseph P. Chamberlain of Columbia University, Louis D. Brandeis of Boston, and Arthur N. Holcombe and Frank W. Taussig of Harvard University. January, 1916 JOHN R. COMMONS PRINCIPLES OF LABOR LEGISLATION CHAPTER I THE BASIS OF LABOR LAW Modern industry is mainly a matter of buying and selling. Scarcely any person lives on the things which he alone produces with his own property. Formerly the protection of his person and his physical property was the principal part of the law. Now the protection of that intangible property which arises through buying and selling and is defined in the law of contract, occupies the attention of lawmakers, courts, and the administrative authorities. I. THE LABOR CONTRACT The labor contract is one of several kinds of contract, which until recently has differed from the others but little in the eyes of the law. Like the others it originates in an agreement, implies a promise, creates rights and duties, and is enforced, if need be, by the power of the state. But the labor contract, in course of time, has come to be recognized as something peculiar. When a bushel of wheat is bought and sold, when a factory or farm is transferred, when a banker receives deposits or lends his credit, when a corporation issues stocks or bonds, the rights and duties created thereby can be fulfilled by delivering something external and unhuman. But when a laborer agrees to work he must deliver himself for a time into the control of another. He earns his living, not by working upon his own property, but by working upon the property of another, and by accepting all the conditions he finds there. And, if he has no property of his own sufficient to fall back upon, he is under an imperious necessity of immediately agreeing with somebody who has. This peculiar relation between a propertyless seller of himself, on the one hand, and a propertied buyer on the other, coupled as it is with equal suffrage of both in the politics of the country, has gradually acquired recognition as something sufficiently important for the government to take notice of. While the courts and law books have dealt with the labor contract as similar to other contracts, legislation goes behind the legal face of things and looks at the bargaining power which precedes the contract. It distinguishes the price bargain, the investment bargain, the real-estate bargain, and others, from the wage bargain. The former are dealings between propertyowners. The latter is a bargain which involves not only wages, but also hours of labor, speed and fatigue, safety and health, accident and disease, even life itself. Unemployment is failure to make such a bargain; immigration, child labor, education, prison labor, collective bargaining, and so on, are conditions which determine the bargaining power of the laborer. Every topic in labor legislation is a phase of the wage bargain, and it is because a large class of people have come to depend permanently, not on their property or resources, but on these bargains with property-owners, that labor legislation has significance. This spectacle of the free laborer, without property but with the ballot, bargaining for his livelihood but electing his rulers, is something new and unaccustomed, measured by the life of nations. It has come about through what may be called industrial, legal, and political changes. (1) Industry Scarcely a generation has passed since the natural resources of the country were sufficiently free to permit people without property to acquire ownership merely by labor. The homestead laws, culminating in 1862, may be looked upon as early labor legislation, for they were intended to provide "free land" by preventing the public domain from falling into the hands of capitalists and slave-owners and so to furnish an outlet to laborers from the East. Workmen who could not become farmers or miners could become tradesmen and independent mechanics in the new towns. But since the lands have been closed by occupation, and their values have increased, money or credit is required to purchase them. This means that laborers without capital must seek capitalists to employ them. In 1869 the first Pacific railway was completed, and immediately Chinese coolies made their appearance in Massachusetts as strike-breakers, and the manufactured products of Massachusetts contributed to unemployment in California.. The railway and steamship have made labor almost as movable as capital, and any bargaining advantage which wageearners have in one section of the country is quickly levelled by migration. Huge factories and corporations were almost unknown a generation ago, but now the United States Steel Corporation has some 200,000 employees, and single establishments have thousands and ten thousands. The special bargaining power of skilled mechanics is levelled down to that of the lesser skilled. Thus the three industrial factors of closed land, labor mobility, and large scale production have produced a class permanently dependent on wages. (2) Labor Law When land and natural resources were free, labor was not always free. Slave labor in the South, indentured labor and apprenticeship in the North and South, contract labor from abroad, were based on legal devices by which the laborer could be kept from running away. Not until the enactment of the thirteenth amendment, following the Civil War, did slavery and involuntary servitude, except as a punishment for crime, become everywhere illegal. The labor contract henceforth has its peculiar significance. Although in theory it is like other contracts, yet it cannot in fact be enforced. The laborer cannot sell himself into slavery or into involuntary servitude. He retains the right to change his mind, to quit work, to run away. Certain other contracts can, in the absence of any other sufficient remedy, be enforced by the courts by compelling "specific performance." 2 But specific performance of the labor contract is involuntary servitude. Business contracts, if violated, are ground for damages which the court orders paid even to the extent of taking all of the business property of the debtor. The labor contract also, if violated, is ground for damages, but for the court to order damages paid out of labor property would be to order the laborer to work out the debt. This is involuntary servitude. Hence the employer is left with the empty remedy of bringing suit against a propertyless man. He can protect himself by making contracts which he also can terminate at any time by discharging the workman without notice. Thus the labor contract becomes, in effect, a new contract every day and hour. It is a continuous process of wage bargaining. It carries no effective rights and duties for the future and is as insecure as it is free. After land has ceased to be free the laborer becomes free. Closed resources and freedom with insecurity produce in time a permanent class of wage-earners. (3) Politics In the northern states the suffrage was granted to all male wage-earners during the years preceding 1845, by removing the property qualifications. This was as much as forty to 'Constitution of the United States, Amendments, Art. XIII: "SEC. I. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. "Sec. 2. Congress shall have power to enforce this article by appropriate legislation." The exception in the case of the seaman's contract will be noted later. 2See Andrews, American Law, 1908, Vol. I, pp. 582, 1586. Rhode Island was the only northern state that retained the property qualification. |