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“Restless Movements Characteristic of Childhood”: The Legal Construction of Child Labor in Nineteenth-Century Massachusetts

Published online by Cambridge University Press:  18 August 2010

James D. Schmidt
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Extract

Elias Berdos had not yet reached the age of fourteen when he arrived in the United States in the first decade of the twentieth century. Three weeks after debarking, he applied to Tremont and Suffolk Mills in Lowell, Massachusetts and was put to work in the textile factory's spinning room, tending the mules as many boys his age did. Inexperienced at factory labor and unable to speak English, he ventured forth into the helter-skelter world of a cotton mill. About four weeks later, Elias stood in the spinning room, waiting for the workday to begin. With his back turned to the machinery, he rested his hand on a guard that covered the spinning frame's gears. When his hand slipped into the rotating metal, Elias joined the tens of thousands of workers injured in the process of American industrialization. Like many of those workers, Elias and his family sued the company for damages, but unlike many of his fellow laborers, Elias relied on Massachusetts's statutory prohibitions against child labor to maintain a cause of action. Losing in the lower courts, Elias appealed to the Supreme Judicial Court of Massachusetts. His case led the court to examine the development of child labor law in Massachusetts, looking into both its statutory genesis and legislative intent.

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Articles
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Law and History Review , Volume 23 , Issue 2 , Summer 2005 , pp. 315 - 350
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Copyright © the Board of Trustees of the University of Illinois 2005

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References

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

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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.

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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.

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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).

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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.

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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.