1. Berdos v. Tremont and Suffolk Mills, 209 Mass. 489 (1911).Google Scholar

2. Representative works in the historiography of child labor and its regulation include Felt, Jeremy P., Hostages of Fortune: Child Labor Reform in New York State (Syracuse, N.Y.: Syracuse University Press, 1965)Google Scholar ; Trattner, Walter, Crusade for the Children: A History of the National Child Labor Committee and Child Labor Reform in America (Chicago: Quadrangle Books, 1970)Google Scholar ; Zelizer, Viviana A., Pricing the Priceless Child: The Changing Social Value of Children (New York: Basic Books, 1985)Google Scholar ; Clement, Priscilla Ferguson, Growing Pains: Children in the Industrial Age, 1850–1890 (New York: Twayne Publishers, 1997)Google Scholar ; and Hindman, Hugh D., Child Labor: An American History (Armonk, N.Y.: M. E. Sharpe, 2002).Google Scholar A notable exception to the general concentration on the progressive era is Hawes, Joseph M., The Children's Rights Movement: A History of Advocacy and Protection (Boston: Twayne Publishers, 1991).Google Scholar For examples of legal development of free labor in the antebellum period, see Steinfeld, Robert J., The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill: University of North Carolina Press, 1991), ch. 6Google Scholar and passim; Steinfeld, , Coercion, Contract, and Free Labor in the Nineteenth Century (New York: Cambridge University Press, 2002), esp. 1–26, 290–312Google Scholar ; Tomlins, Christopher L., Law, Labor, and Ideology in the Early Republic (New York: Cambridge University Press, 1993), esp. 223–97CrossRefGoogle Scholar ; Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar ; Schmidt, James D., Free to Work: Labor Law, Emancipation, and Reconstruction, 1815–1880 (Athens: University of Georgia Press, 1998), ch. 1.Google Scholar For an excellent summary and critique of the literature on labor law, see Witt, John Fabian, “Rethinking the Nineteenth-Century Employment Contract, Again,” Law and History Review 18 (2000): 1–56CrossRefGoogle Scholar.

3. On the nature of household authority, see Shammas, Carole, A History of Household Government in America (Charlottesville: University of Virginia Press, 2002), chs. 1–4Google Scholar ; and Tomlins, Christopher, “Subordination, Authority, Law: Subjects in Labor History,” International and Working Class History 67 (1995): 56–90CrossRefGoogle Scholar.

4. The evidence that follows for Massachusetts forms part of a larger study based on my reading of about 400 apprenticeship litigations, about 200 contract litigations, and about 400 industrial accident litigations stretching from the 1790s to the 1930s as well as on archival research in court records relating to a sampling of these cases. In the text below, I allude to legal developments outside Massachusetts. I have cited examples of cases where I thought appropriate, but I have made no attempt to provide a comprehensive set of citations.

5. For Tomlins's subtle and brilliant working out of the idea of “legality,” see “The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History,” in The Many Legalities of Early America, ed. Tomlins, Christopher L. and Mann, Bruce H. (Chapel Hill: University of North Carolina Press, 2002), 1–20Google Scholar , esp. 4–5. “Legality,” Tomlins writes, “established a grid of new imposed realities to which the law's institutional technology of recorded word, deed, and authoritative delivery could give real, if often brittle, effect.” Legality, for Tomlins, is the post-structural solution to the pitfalls involved in historicizing something as seemingly fixed as law. “In their Foucauldian sense, legalities are the symbols, signs, and instantiations of formal law's classificatory impulse, the outcomes of its specialized practices, and the products of its institutions,” he argues.

6. Shammas, , History of Household Government, esp. ch. 4Google Scholar ; Tomlins, , “Subordination,” 65–73Google Scholar.

7. On apprenticeship generally in this period the standard work is Rorabaugh, W. J., The Craft Apprentice: From Franklin to the Industrial Age (New York: Oxford University Press, 1986).Google Scholar See also Mason, Mary Ann, From Father's Property to Children's Rights: The History of Child Custody in the United States (New York: Columbia University Press, 1994), 30–39, 76–81.Google Scholar The legal history of apprenticeship, especially in the antebellum North, has received less attention than it deserves, but a recent essay by Holly Brewer explores important questions about the institution's evolution during the eighteenth century. See “Age of Reason?: Children, Testimony, and Consent in Early America,” in The Many Legalities of Early America, 316–29. For a recent treatment of pauper apprenticeship using economic analysis, see Murray, John E. and Herndon, Ruth, “Markets for Children in Early America: A Political Economy of Pauper Apprenticeship,” Journal of Economic History 62 (2002): 356–82.CrossRefGoogle Scholar Other accounts include Dolgin, Janet L., “Transforming Childhood: Apprenticeship in American Law,” New England Law Review 31 (1997): 1113–91Google Scholar ; and Quigley, William P., “The Quicksands of the Poor Law: Poor Relief in a Growing Nation, 1790–1820,” Northern Illinois University Law Review 18 (1997): 1–98Google Scholar.

8. Respublica v. Keppele, 1 Yeates 273 (Penn. 1793)Google Scholar ; Brewer, , “Age of Reason?” 325Google Scholar.

9. Rorabaugh, , Craft Apprentice, 50–53.Google ScholarSmith v. Hubbard, 11 Mass. 24 (1814)Google Scholar ; Power v. Ware, 19 Mass. 451 (1824), 456Google Scholar ; Butler v. Hubbard, 22 Mass. 250 (1827), 254.Google Scholar See also Reidell v. Congdon, 33 Mass. 44 (1834)Google Scholar.

10. Commonwealth v. Hamilton, 6 Mass. 273 (1810)Google Scholar ; Harper v. Gilbert, 59 Mass. 417 (1850)Google Scholar ; Lobdell v. Allen, 75 Mass. 377 (1857).Google Scholar On children and consent, see Brewer, , “Age of Reason?” esp. 316–21Google Scholar.

11. For examples of trading apprentices and brokering, see Commonwealth v. Kendig, 1 Serg. & Rawle 366 (Pa. 1815); Commonwealth v. Vanlear, 1 Serg. & Rawle 248 (Pa., 1815).

12. Hall v. Gardner, 1 Mass. 172 (1804).Google Scholar On anti-slavery, see Melish, Joanne Pope, Dis-owning Slavery: Gradual Emancipation and “Race” in New England, 1780–1860 (Ithaca, N.Y.: Cornell University Press, 1998), 68, 100–101Google Scholar.

13. Davis v. Coburn, 8 Mass (7 Tyng) 299 (1811).Google Scholar

14. Davis v. Coburn, 305. On the nature and uses of contract language, see Stanley, , From Bondage to Contract, chs. 1–2.Google Scholar On Story, the law, and economic development, see Newmeyer, R. Kent, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 65, 115–54, 403 n128Google Scholar.

15. Davis v. Coburn, 305. On anti-slavery discourse in New England during this period, see Melish, , Disowning Slavery, ch. 2.Google Scholar For biographical information on Sedgwick, see Welch, Richard E. Jr, Theodore Sedgwick: A Political Portrait (Middletown, Conn.: Wesleyan University Press, 1965)Google Scholar.

16. Davis v. Coburn, 305.

17. Such a line of thinking could show up in the most unlikely of places, such as in the slave state of Kentucky. See Shult v. Travis, 2 Ky. 142 (1802); Hudnut v. Bullock, 10 Ky. 299 (1821); Davenport v. Gentry's Administrator, 48 Ky. 427 (1849).

18. Day v. Everett, 7 Mass. 145 (1810), 146.Google Scholar For an extended discussion of this case, see Dolgin, , “Transforming Childhood,” 1132–38Google Scholar.

19. Day v. Everett, 7 Mass. 145 (1810), 147–49.Google Scholar

20. For examples of labor agreements in other states, see Weeks v. Leighton, 5 N.H. 343 (1831)Google Scholar ; McCoy v. Huffman, 8 Cow. (N.Y.) 84 (1827)Google Scholar.

21. Tomlins, , “Subordination,” 70–71.Google Scholar

22. Stanley, , From Bondage to Contract, esp. ch. 5Google Scholar ; Witt, , “Rethinking the Nineteenth-Century Employment Contract, Again,” 9–10Google Scholar.

23. On father's rights see Benson v. Remington, 2 Mass. 113 (1804).Google Scholar See also Dawes v. Howard, 4 Mass. 97 (1808).Google Scholar On mothers, see Whipple v. Dow, 2 Mass. 415 (1807).Google Scholar On stepfathers, see Freto v. Brown, 4 Mass. 675 (1808)Google Scholar.

24. Angel v. McLellan, 16 Mass. 28 (1819), 32.Google Scholar On growing concerns about young people circulating freely in urban society, see Haltunnen, Karen, Confidence Men and Painted Women: A Study in Middle-Class Culture (New Haven: Yale University Press, 1982), chs. 1–2.Google Scholar On Parker, see Osgood, Russell K., “Isaac Parker: Republican Judge, Federalist Values,” in The History of the Law in Massachusetts: The Supreme Judicial Court 1691–1992, ed. Osgood, Russell K. (Boston: Supreme Judicial Court Historical Society, 1992), 153–70Google Scholar.

25. Nightingale v. Withington, 15 Mass. 272 (1818), 274–75.Google Scholar

26. Whiting v. Earle, 20 Mass. 201 (1825), 202.Google Scholar

27. On patriarchy and the courts, see Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar ; and Bardaglio, Peter, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995)Google Scholar.

28. Stark v. Parker, 19 Mass. 267 (1824).Google Scholar

29. Moses v. Stevens, 19 Mass. 332 (1824).Google Scholar

30. Ibid.

31. Ibid.

32. Ibid.

33. On antebellum ideas about labor bargaining, see Glickstein, Jonathan, American Exceptionalism, American Anxiety: Wages, Competition, and Degraded Labor in the Antebellum United States (Charlottesville: University of Virginia Press, 2002), ch. 3.Google Scholar

34. Manchester v. Smith, 29 Mass. 113 (1831), 115.Google Scholar This case was part of a group of cases that the court considered in late 1831, all of which seem to have aimed to test the legality of various arrangements involving children on whaling ships. See Randall v. Rotch, 29 Mass. 110 (1831)Google Scholar , Nickerson v. Easton, 29 Mass. 107 (1831).Google Scholar

35. Corey v. Corey, 36 Mass. 29 (1837).Google Scholar

36. Ibid., 30. The literature on the transformation of the countryside is immense. For examples pertaining to Massachusetts, see Clark, Christopher, The Roots of Rural Capitalism: Western Massachusetts, 1780–1860 (Ithaca, N.Y.: Cornell University Press, 1990)Google Scholar ; and Vickers, Daniel, Farmers and Fishermen: Two Centuries of Work in Essex County, Massachusetts, 1630–1850 (Chapel Hill: University of North Carolina Press, 1994)Google Scholar.

37. Vent v. Osgood, 36 Mass. 572 (1837)Google Scholar ; Weeks v. Leighton, 5 N.H. 343 (1831)Google Scholar.

38. Vent v. Osgood, 573.

39. For later cases applying these rules, see Stiles v. Granville, 60 Mass.458 (1850)Google Scholar ; and Abbott v. Converse, 86 Mass. 530 (1862).Google Scholar On the relationship between legal rules and social change, see Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century, 234; and Witt, “Rethinking the Nineteenth-Century Employment Contract, Again,” 2–5 and passim.

40. These generalizations are based on more than forty litigations in Massachusetts between 1851 and 1911. I cite examples below. On the incidence of accidents, see Witt, John Fabian, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press, 2004), 22–29Google Scholar.

41. On changing conceptions of industrial accident law in the nineteenth century, see Tomlins, , Law, Labor, and Ideology in the Early Republic, 301–84Google Scholar ; and especially Witt, , Accidental Republic, 43–70Google Scholar and passim. My analysis of accidents has also been informed by Welke, Barbara, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2002)Google Scholar.

42. King v. Boston and Worcester Railroad Company, 63 Mass. 112 (1851), 112, 113.Google Scholar

43. Cayzer v. Taylor, 76 Mass.274 (1857).Google Scholar

44. It is possible that the gap in litigations stems from the nature of case reports, and hence, my methodology in finding these cases. Since “children's industrial accidents” is not a neat category in digests, I found these cases by first following precedential lines and then by keyword searching LEXIS-NEXIS on any term likely to indicate the status of a minor. If the court reporters did not use those terms or indicate age directly, there would be no way to sort out a “children's” case from the rest of the industrial accident litigations of the period. Witt's work on accident law confirms this general pattern in the growth of tort litigations. Witt, Accidental Republic, 51–63.

45. Coombs v. New Bedford Cordage Company, 102 Mass.572 (1869).Google Scholar

46. Ibid., 583.

47. Ibid. For the other personal injury cases, see Holly v. Boston Gas Light Company, 8 Gray123 (1857).Google ScholarWright v. Malden & Melrose Railroad Company, 4 Allen283.Google ScholarCallahan v. Bean, 91 Mass.401 (1864).Google Scholar On personal injury generally, see Welke, Recasting American Liberty.

48. Coombs v. New Bedford Cordage Company, 582

49. Ibid., 592.

50. For a brief synopsis of nineteenth-century ideas about children and their capacities, see Degler, Carl N., At Odds: Women and the Family in America from the Revolution to the Present (New York: Oxford University Press, 1980), 66–69, 86–110Google Scholar.

51. O'Connor v. Adams, 120 Mass.427 (1876)Google Scholar ; Curran v. Merchants' Manufacturing Company, 130 Mass.374 (1881)Google Scholar ; Rock v. Indian Orchard Mills, 142 Mass.552 (1886)Google Scholar.

52. Ciriack v. Merchants' Woolen Company, 146 Mass. 182 (1888) and 151 Mass. 152 (1890).

53. 151 Mass. 156–57.

54. Connors v. Grilley, 155 Mass.575 (1892)Google Scholar ; Welke, , Recasting American Liberty, 235–46.Google Scholar See also LaPlante v. Warren Cotton Mills, 165 Mass.487 (1896)Google Scholar.

55. Collins v. South Boston Railroad, 142 Mass. 301 (1886), 315.

56. O'Connor v. Whittall, 169 Mass.563 (1897), 568.Google Scholar On juries and limitations generally, see Cheney v. Middlesex Company, 161 Mass.296 (1894)Google Scholar ; Hanson v. Ludlow Manufacturing Company, 162 Mass.187 (1894)Google Scholar ; Armstrong v. Forg, 162 Mass.544 (1895).Google Scholar For an example of direct reliance on Ciriack to limit recovery, see Gaudet v. Stansfield, 182 Mass.451 (1903), 454Google Scholar.

57. A 1905 case, Rudberg v. Bowden Felting Company, 188 Mass.365 (1905)Google Scholar suggests that lower court judges in Massachusetts had begun to see negligence suits as a way to enforce child labor statutes. This tactic was already well underway in other states. Perhaps the best example is North Carolina. For a summary of developments there, see Pettit v. Atlantic Coast Line Railroad Company, 156 N.C.119 (1911)Google Scholar.

58. Berdos v. Tremont and Suffolk Mills, 493, 500.