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"Restless Movements Characteristic of Childhood": the Legal Construction of Child Labor in Nineteenth-Century Massachusetts Author(S): James D

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American Society for Legal History The Board of Trustees of the University of Illinois "Restless Movements Characteristic of Childhood": The Legal Construction of Child Labor in Nineteenth-Century Massachusetts Author(s): James D. Schmidt Reviewed work(s): Source: Law and History Review, Vol. 23, No. 2 (Summer, 2005), pp. 315-350 Published by: American Society for Legal History Stable URL: http://www.jstor.org/stable/30042871 . Accessed: 25/01/2012 12:55 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. American Society for Legal History and The Board of Trustees of the University of Illinois are collaborating with JSTOR to digitize, preserve and extend access to Law and History Review. http://www.jstor.org "RestlessMovements Characteristic of Childhood":The Legal Construction of ChildLabor in Nineteenth-Century Massachusetts JAMES D. SCHMIDT Elias Berdos had not yet reachedthe age of fourteenwhen he arrivedin the UnitedStates in the firstdecade of the twentiethcentury. Three weeks afterdebarking, he appliedto Tremontand SuffolkMills in Lowell, Mas- sachusetts and was put to work in the textile factory's spinning room, tendingthe mules as manyboys his age did. Inexperiencedat factorylabor and unableto speakEnglish, he venturedforth into the helter-skelterworld of a cottonmill. Aboutfour weeks later,Elias stood in the spinningroom, waitingfor the workdayto begin.With his backturned to the machinery,he rested his handon a guardthat covered the spinningframe's gears. When his handslipped into the rotatingmetal, Elias joined the tens of thousands of workersinjured in the processof Americanindustrialization. Like many of those workers,Elias andhis family sued the companyfor damages,but unlikemany of his fellow laborers,Elias relied on Massachusetts'sstatutory prohibitionsagainst child labor to maintaina cause of action. Losing in the lower courts,Elias appealedto the SupremeJudicial Court of Massa- chusetts.His case led the courtto examinethe developmentof child labor law in Massachusetts,looking into bothits statutorygenesis andlegislative intent.The 1909 statuteon whichElias relied, Justice Arthur Prentice Rugg declared,"was passed in the exerciseof the police poweras a humanitarian JamesD. Schmidtis anassociate professor of historyat Northern Illinois University <[email protected]>.He would like to thankBeatrix Hoffman, Rosemary Feurer, KristeLindenmeyer, and the four anonymous reviewers for Law and History Review fortheir helpful comments and criticisms. Law and History Review Summer 2005, Vol. 23, No. 2 © 2005 by the Board of Trustees of the University of Illinois 316 Law and History Review, Summer2005 measureand in theinterest of the physicalwell-being of the race.It prevents children of immaturejudgment and undevelopedbodies from working underconditions likely to endangertheir health, life, or limb."Children underfourteen, Rugg averred,lacked "prudence, foresight, and restraint." Indeed,the "sole cause"of Elias's injurywas "temperamentaluneasiness and heedlessness" caused by "the restless movementscharacteristic of childhoodwhen placed in the midst of rapidlymoving machinery." Elias, the courtruled, could recoverdamages for his injury.' At firstglance, Elias Berdos'sstory comports well with receivednarra- tives aboutchild laborin the UnitedStates and effortsto regulateit. Elias came to the UnitedStates as partof the new immigrationof the late nine- teenthand early twentieth centuries, he workedin urbanizedNew England, andhe founda friendin a progressive-erajudge imbuedwith the romantic sentimentsof bourgeoischildhood. Hence, his narrativealigns with most accountsof child laborand its relationto law. While noting early legisla- tive action,most historiansof child laborhave focused on progressiveera movementsthat aimed to abolishor curtailchildren's wage work through statutoryprohibition or regulation.As a result, these accounts pay less attentionto the role of law in the constructionof children'swage work, usually tracingits originsto the social and economicchanges of the nine- teenth-centurymarket revolution. In particular,little has been said about the role of the courtsin eitherthe rise or the fall of child laborin industry. Recent work by legal historiansof free labor,although focused primarily on adults,has envisioneda quite differentrole for law in the shapingof capitalistwage relations.Although disagreement about causation remains, most recent scholarshave arguedthat legal rules shapedcapitalist labor relationsfrom the outsetby legitimatingthe hierarchiesof powerinherent in wage work,while simultaneouslyobscuring those inequalitiesfrom la- borersthemselves. Always contested and negotiated, legal rules nonetheless markedthe arenain whichstruggles between employers and workers would take place. In delving into this process, scholarshave exploredmatters of race and gender as well as class, but they have not investigatedclosely the influenceof age. Applyingthe insights of recentlegal scholarshipon free labor to children'swork, however,raises some importantquestions. Most did the law the same role in child labor?If simply, perform shaping so, why and how did child labor gain legal and culturallegitimacy in the nineteenthcentury only to lose it by the twentieth?Finding answers to these questionscan providevaluable insights for both the historyof labor and the historyof childhood.2 1. Berdosv. Tremontand SuffolkMills, 209 Mass. 489 (1911). 2. Representativeworks in the historiographyof child labor and its regulationinclude JeremyP. Felt, Hostages of Fortune:Child Labor Reformin New YorkState (Syracuse, Restless MovementsCharacteristic of Childhood 317 This articleinvestigates the role of law in shapingchildren's wage work. It uses Massachusettsas a case study and focuses on the courts.It argues that the courtshelped createa free marketin laborfor children,one that reformersin statelegislatures as well as judges themselveswould eventu- ally seek to limit or abolish outright.This processoccurred at two levels. On one level, courtsestablished rules that would governthe actualterms of minors'participation in the labor market.To understandthis process, it is critical to rememberthat when the nineteenthcentury began, law restrainedfull participationby minorsin a capitalistlabor market. In the eighteenthcentury and before, most children'swork outside the household constituteda formof boundlabor, not free labor.Formal indentures, either for apprenticeshipsor for simple service, exchangedlabor in returnfor supportand education.Written and sealed, such agreementsrepresented a bargainbetween a parent,usually a father,and a master,not between a child and an employer.Long-standing legal precedents,often referred to as the "privilegeof infancy,"prevented minors from makingcontracts for anythingother than necessariesor education.While all this does not mean that young people never workedfor wages, normaland legitimate child labor occurredonly in bound relationshipsthat were regulatedby statute.3 N.Y.: SyracuseUniversity Press, 1965);Walter Trattner, Crusade for the Children:A His- toryof the NationalChild Labor Committee and ChildLabor Reform in America(Chicago: QuadrangleBooks, 1970); VivianaA. Zelizer, Pricing the Priceless Child: The Chang- ing Social Valueof Children(New York:Basic Books, 1985); PriscillaFerguson Clement, GrowingPains: Childrenin the IndustrialAge, 1850-1890 (NewYork: Twayne Publishers, and D. ChildLabor: An American M. 1997); Hugh Hindman, History(Armonk, N.Y.: E. Sharpe,2002). A notableexception to the generalconcentration on the progressiveera is JosephM. Hawes,The Children's Rights Movement: A Historyof Advocacyand Protection (Boston:Twayne Publishers, 1991). For examplesof legal developmentof free laborin the antebellumperiod, see RobertJ. Steinfeld,The Invention of Free Labor:The Employment Relation in Englishand AmericanLaw and Culture,1350-1870 (ChapelHill: University of NorthCarolina Press, 1991), ch. 6 and passim;Steinfeld, Coercion, Contract, and Free Laborin theNineteenth Century (New York: Cambridge University Press, 2002), esp. 1-26, 290-312; ChristopherL. Tomlins,Law, Labor, and Ideology in the Early Republic(New York:Cambridge University Press, 1993), esp. 223-97; Amy Dru Stanley,From Bondage to Contract:Wage Labor, Marriage, and the Marketin the Age of Slave Emancipation (New York:Cambridge University Press, 1998); JamesD. Schmidt,Free to Work:Labor Law,Emancipation, and Reconstruction,1815-1880 (Athens:University of GeorgiaPress, 1998), ch. 1. For an excellentsummary and critique of the literatureon laborlaw, see John FabianWitt, "Rethinking the Nineteenth-CenturyEmployment Contract, Again," Law and HistoryReview 18 (2000): 1-56. 3. On the natureof householdauthority, see CaroleShammas, A Historyof Household Governmentin America(Charlottesville: University of VirginiaPress, 2002), chs. 1-4; and ChristopherTomlins, "Subordination, Authority, Law: Subjectsin LaborHistory," Interna- tional and WorkingClass History67 (1995): 56-90. 318 Law and History Review, Summer2005 Over the course of the early nineteenthcentury, Massachusetts courts graduallyabandoned
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