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"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
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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
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: Children in 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 this set of legal rules, replacingthem with one that allowedminors to enterthe worldof free labor.This slow evolutionof the rules occurredin three areasof law: apprenticeship;contract; and indus- trial accidents.Between the 1790s and the 1830s, Massachusettscourts preservedmany of the statutoryand commonlaw rules that undergirded apprenticeship.This preventedapprenticeship from evolving as capital- ism took hold in industrializingAmerica. More important,it meant that the legitimacyof most labor arrangementsfor and by childrenwould be judged by the emergingcommon law of contracts,not by the statutory regime that had regulatedapprenticeships and other bound child labor. In a second phase of judicial activitycompleted by the 1840s, a series of children'slabor contract cases led the Massachusettscourts to producea new set of rulesfor children'swork. The courtsauthorized minors to make wage contractsfor themselvesby fashioningthe conceptof impliedparental consent.At the same time, the courtsallowed minorsto breaktheir labor agreementsat will, preservingthe notion that children'swork differed from adultfree labor.Finally, between 1851 and 1911, the Massachusetts courtsconsidered the questionof age in industrialaccidents, first includ- ing childrenwith emergingcommon law rules, then setting up a special standardfor minors,in turnweakening it, and finally adoptingin Berdos v. Tremontand SuffolkMills the growingcultural and legal consensusof a special standardof care for underageworkers.4 Rules createdin this long processhelped set the specific termsof chil- dren's wage work, but law workedon a second level as well. Law about children'slabor servedas an epistemologicalsystem. It nameddivergent social practices,created seemingly fixed categoriesand boundaries,and supplieda languagefor talkingabout "child labor." In short,judicial dis- coursehelped construct for children'swage workwhat Christopher Tomlins has calleda "legality."The courtsprovided a forumwhere central questions about the social location of childrenand the culturalmeaning of child- hood undercapitalism could be answered.The marketrevolution in the industrializingNortheast brought to the forefrontnew understandingsof humanagency. The centralassumptions of a contract-drivensociety-self- ownership,consent, reciprocity-necessarily raised troublingquestions when appliedto young people. Did they own their own laborpower and
4. The evidencethat follows for Massachusettsforms part of a largerstudy based on my readingof about400 apprenticeshiplitigations, about 200 contractlitigations, and about 400 industrialaccident litigations stretching from the 1790s to the 1930s as well as on archival researchin courtrecords relating to a samplingof these cases. In the text below,I alludeto legal developmentsoutside Massachusetts. I have cited examplesof cases whereI thought appropriate,but I have madeno attemptto providea comprehensiveset of citations. Restless MovementsCharacteristic of Childhood 319 could they dispose of it as theirown agents?Did young people possess a will of theirown, one thatwould allow themto consentto a bargain?Could they appreciatethe terms of a contractor the risks of a job? Ultimately, were childrenfull participantsin a marketsociety or not?These questions were asked and answeredin manyplaces in nineteenth-centuryAmerica: in newspapers,magazines, novels, poetry, and plays; in sermons,speeches, and tracts;in interactionsbetween children,parents, reformers, and local officials. By supplyinganother set of answers,the courtsacted as creators of cultureas well, helpingto definethe capabilitiesof young people, both legally and socially. Over the course of the nineteenthcentury, judicial discourseincreasingly imagined young people as capableof judgingtheir own interestsand actingfor themselves.In the end, however,this change in legal imaginationprovoked new questionsabout young people's agency andprompted a returnto limitationsof theirlegal statusbased on a shared conceptionof young people's naturalincapacities.5
Apprenticeship
By its nature,apprenticeship created legal and culturalbarriers to a free marketin child labor,for it comprisedpart of the body of law thatunder- girded the legal incapacityof minors and preventedthem from making valid contracts.As such, apprenticeshipformed part of the largerweb of hierarchicalarrangements that defined social relationsbetween nominally free personsin earlyAmerica: husband-wife, parent-child, master-servant, town officials-paupers.Unlike the fictionalequality that would accompany the rise of a marketsociety, all of these relationshipspresupposed a supe- rior and a subordinateparty. Whether true in realityor not, all assumeda reciprocalexchange of protectionand supportfor obedienceand, usually, labor.In turn,all presumeda certainlevel of incapacityon the partof the inferiorparty, in partbecause of imaginednatural incapacities, but also because inferiorparties were underthe legal controlof anotherand hence
5. ForTomlins's subtle and brilliant working out of the idea of "legality,"see "TheMany Legalitiesof Colonization:A Manifesto of Destinyfor Early American Legal History," in The ManyLegalities of EarlyAmerica, ed. ChristopherL. Tomlinsand Bruce H. Mann(Chapel Hill: Universityof NorthCarolina Press, 2002), 1-20, esp. 4-5. "Legality,"Tomlins writes, "establisheda grid of new imposed realities to which the law's institutionaltechnology of recordedword, deed, and authoritativedelivery could give real, if often brittle,effect." Legality,for Tomlins,is the post-structuralsolution to the pitfallsinvolved in historicizing somethingas seeminglyfixed as law."In their Foucauldian sense, legalities are the symbols, signs, andinstantiations of formallaw's classificatoryimpulse, the outcomesof its special- ized practices,and the productsof its institutions,"he argues. 320 Law and History Review, Summer 2005 were not full legal persons.All of this meantthat childrencould not be seen as a partyto a contract,that legally they could not be understoodas free laborers.6 The legalities of apprenticeshipclashed directlywith evolving notions of contractin late eighteenth-and early nineteenth-centuryAmerica. In an indentureof apprenticeship,the child was not a party,although his or her third-partyconsent to the bargainmight be required.Rather, the exchange occurredbetween parentand master;it representeda transfer of the rights of one superiorparty to another.The masteracted in loco parentis,providing education and supportin returnfor the minor'slabor. Furthermore,the law presumedthis bargaintook place in a face-to-face society, where ma