Abstract
Beginning in the 1840s many states passed laws mandating the compulsory education of children and regulating the work of women and children although these were far from universal by 1880. In this paper, we focus on the impact of hours laws, especially those for women. Scholars have raised serious questions about the effectiveness of these laws because of doubts about enforcement mechanisms and whether or not the laws were binding. Moreover, it has been questioned as to whether these laws were simply passed as part of rent-seeking behavior by those not covered by the laws, in particular, adult men. In response, many of the laws covering adult women have now been rolled back. One state, Massachusetts, however, did pass an effective law in 1874 that resulted in the (successful) prosecution of at least one politically powerful corporation. Here, we investigate the impact of these laws using establishment level data for 1880. The historical record is consistent with rent-seeking by men but not for the purpose of disadvantaging women. The historical record is consistent with rent-seeking by men but not for the purpose of disadvantaging women. Rather, men pressed the case for women and children to secure benefits that they were apparently unable to achieve on their own. This was possible because, at the time, women and children were complements to male labor rather than substitutes. We find that there were systematic variations in hours from industry to industry, between city and countryside and regionally and that violations of the laws was not uncommon. Larger firms such as those in urban areas or those employing large numbers of the affected group were, however, more likely to be in compliance, particularly in Massachusetts. The evidence for Massachusetts also suggests, albeit very weakly, that the magnitude and certainty of penalties for violating the law may have been a major factor determining compliance with the law.
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- 1.
Massachusetts, Laws 1874, C. 221.
- 2.
COMMONWEALTH V. HAMILTON MANUFACTURING COMPANY, 120 Mass. 383 (1876).
- 3.
DARTMOUTH COLLEGE, TRUSTEES OF V. WOODWARD 17 US 518, 4 L ed. 629 (1819).
- 4.
At the 1870 Census of Manufactures, the Hamilton Manufacturing Company was reported to have a capital of $1.2 million and employed 350 men, 672 women and 32 children to produce more than 10 million yards of cloth valued at $1.3 million. It was among the largest manufacturing firms in the U.S. See the manuscripts of the Census of Manufactures at the Ninth Census for Massachusetts, p. 127, line 8, held by the Massachusetts state archives in Boston.
- 5.
RICHIE v. PEOPLE. 155 Ill. 98 (1895). In 1909, Illinois adopted a new ten-hour to replace the eight-hour law overturned in RICHIE v. PEOPLE. Its constitutionality was almost immediately challenged and upheld in RITCHIE V. WAYMAN, 244 Ill. 509, 91 N.E. 695 (1910) using the new secret weapon developed for MULLER V. OREGON—the Brandeis brief.
- 6.
Regarding the importance of police powers, see US Department of Labor (1904). At least four state courts had sustained such legislation: COMMONWEALTH V. HAMILTON MANUFACTURING COMPANY, 125 Mass. 383; WENHAM V. STATE, 65 Neb. 394, 400, 406; STATE V. BUCHANAN, 29 Wash. 602; COMMONWEALTH V. BEATTY, 15 Pa. Sup. Ct. 5, 17. For the U.S. Supreme Court decision, see MULLER V. OREGON, 208 US 412.
- 7.
For example, Massachusetts, Laws 1890, C. 183. See also Commons (1918, p. 288–94).
- 8.
Commons and Andrews (1927, p. 401–03) claim that New York was the pioneer in this field, passing a law as early as 1881, but without reference to the specific statute.
- 9.
MUNN V. ILLINOIS, 94 US 125 (1877).
- 10.
Federal Register, 34, no.158, August 19, 1969.
- 11.
INTERNATIONAL UNION, UAW V. JOHNSON CONTROLS, INC. This case was accepted by the U.S. Supreme Court, March 26, 1990. See Los Angeles Times, March 27, 1990, A1:3 and A20:1.
- 12.
The following facts of the case have been taken from 886 F.2d 871 (7th Cir. 1989), that is West’s Federal Reporter, Cases Argued and Determined in the United States Courts of Appeal and Temporary Emergency Court of Appeal, (St. Paul: West Publishing Co., 1990), Volume 886 F.2d, pp. 871–921.
- 13.
680 F.Supp. 309.
- 14.
886 F.2d 871 (7th Cir. 1989).
- 15.
New York Times, March 21, 1991, A12. For the Court’s full decision, see 499 U.S. 187 (1991).
- 16.
The Supreme Court decision closely mirrors a prior decision against Johnson Controls by Justice Robert Staniforth of the state appeals court in Orange County, California who determined “however laudable the concern by business …for the safety of the unborn, they may not effectuate their goals …at the expense of the woman’s ability to obtain work for which she is otherwise qualified.” See “Company loses ‘fetus protection’ case,” Orange County Register (Santa Ana, California), March 2, 1990.
- 17.
By failing to acknowledge the state’s interest in the welfare of children, the decision in Johnson Controls also appears to reverse the policy enunciated in MULLER v. OREGON (1908) that: “healthy mothers are essential to vigorous offspring [so that] the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race …differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.” See MULLER v. OREGON, 208 US 412, pp. 6–7.
- 18.
These data were collected by Jeremy Atack and Fred Bateman with funding by the National Science Foundation to the University of Illinois under SES 86-05637 and Indiana University under SES 86-09392. They are available from ICPSR at the University of Michigan as ICPSR 9384 and 9385 (Atack and Bateman 2004a,b); They are available electronically at https://doi.org/10.3886/ICPSR09385.v2 https://doi.org/10.3886/ICPSR09384.v2. Complete documentation is available at the ICPSR and readers are also referred to Atack and Bateman (1999, p. 177–88).
- 19.
See Wright (1900, p. 315–61) for a complete list of the census questions including those on the special schedules.
- 20.
In addition, there were 136 establishments in which summer hours were missing (as distinct from zero), 135 with missing winter hours and 141 firms with both summer and winter hours missing. These firms were excluded from the calculations.
- 21.
Forty-nine firms (0.6% of the sample) reported zero hours for one of the 6 month periods. Of these, 31 reported not operating in winter and were typically firms in flour milling, lumber, and brickmaking. Twelve of the 18 firms that reported not working in summer were in the agricultural services industry.
- 22.
That is to say, firms reporting 15 h of work were recorded for these calculations as operating 7.5 h per worker, but 15 h per firm.
- 23.
As noted above, this latter statistic is biased downward in our sample because of the separate enumeration of the large mills in the textile centers of New England—Lowell, Lawrence and Fall River—and their exclusion from our sample. For example, the published census yields an estimate of 57% female in the cotton textile industry. See U.S. Department of the Interior, Census Office 1883, p. 1125
- 24.
We refer to this as the “lump of labor hypothesis,” that is the proposition that if a firm used say 1000 h of labor per day, this could be supplied by 100 workers working a 10-hour day or by 125 workers working an eight-hour day—a 25% increase in employment as a result of the reduction in hours per day.
- 25.
- 26.
The increase is complaints about hours is swamped by a dramatic increase in the diversity of workers’ demands. In 1880, simple, single issues such as shorter hours, more pay, or against a cut in wages had accounted for almost three-quarters of all labor demands in strikes but by the end of the decade they made up barely half of labor grievances (US Department of Labor 1896, p. 29).
- 27.
See Atack and Bateman (1992), especially pages 2–22, for the full set of estimates and description of sources.
- 28.
Sumner (1910, p. 73) argues, for example, that Massachusetts manufacturers reduced hours to prevent enactment of laws.
- 29.
For evidence on rising productivity and real wage growth see Sokoloff (1986, pp 679–729, especially Tables 13.4–13.6).
- 30.
- 31.
See the discussion surrounding this in Cahill (1968, p. 69–71).
- 32.
New Hampshire, 1847 Session Laws, Ch. 4.
- 33.
- 34.
See California: California, Session Laws of 1853, Ch. 131, p. 187; Connecticut: Connecticut, Session Laws of 1855, Ch. 45; Georgia: Georgia, Code of 1861, Sec. 1847; Maine: Maine, Session Laws 1848, ch. 83; New Jersey: New Jersey, Session Laws 1851, pp. 321–322 (This law only applied to cotton, woolen, silk, paper, glass, and flax factories and to iron and brass works); New York: New York, Session Laws 1853, ch. 641; Pennsylvania: Pennsylvania, Session Laws 1848, Act 227; Rhode Island: Rhode Island, Session Laws 1853, p. 245.
- 35.
Pennsylvania Secretary of Internal Affairs (1882, pp. 272–3). Since we do not know how many hours a day were worked before the lockout, we do not know whether or not the reduction changed the hourly wage rate.
- 36.
- 37.
HELPHENSTEINE V. HARTIG (5 Ind. App. Ct. 172, 1892).
- 38.
Unpublished sample data from Atack and Bateman (2004b).
- 39.
198 US 45.
- 40.
198 US 45.
- 41.
For those readers inclined to question this assertion, we ask that you reflect upon the actions of those who, finding lost property—sometimes large sums of untraceable cash—return it, or those who follow posted speed limits.
- 42.
See, for example, Ohio Bureau of Labor Statistics (1879, pp. 280–86), where a carriage manufacturer reported: “I am strongly in favor of an eight-hour system. Workingmen would be better informed if they had more rest, and would be more healthy and longer lived …The man who works ten hours, and does his home chores …is too tired to study or in any way tax his mind.” (p. 281).
- 43.
Ohio, Session Laws 1852, v. 50, p. 187.
- 44.
Dakota: Dakota Territory Legislature. Dakota Session Laws 1862-3, ch. 49; Minnesota: Minnesota, Session Laws 1858, ch. 66; Wisconsin: Wisconsin, Session Laws 1867, ch. 83.
- 45.
Massachusetts, Laws 1874, C. 74. The same principle was eventually established at the federal level in 1908 in MULLER v. OREGON (208 US 412).
- 46.
See, for example, Report of the Convention of the International Association of Factory Inspectors, 1894, p. 65 quoted in Goldmark (1912, p. 213).
- 47.
There is, apparently, no complete summary of legislation regulating hours for work. Table 5.3 has been compiled from a wide variety of sources, among them US Women’s Bureau (1931), Commons (1918, p. 541–5), and Sufrin and Sedgwick (1954, p. 78). US Women’s Bureau (1931), for example, misses the early legislation in California, Connecticut, Georgia, New York, and Rhode Island. Also Persons (1911), Baker (1925, p. 109), Towles (1908), and Edwards (1907).
- 48.
Connecticut: Connecticut, Laws 1842, C. 28; Massachusetts: Massachusetts, Laws 1842, C. 60.
- 49.
This list is assembled from Ogburn (1912), specifically from Table 30, pp. 108–9 but corrected for the omission of Maine that had passed compulsory schooling legislation in 1875. See also Table 1, Landes and Solmon (1972) quoting Ogburn (1912). The list in Landes and Solmon (1972), however, includes Indiana, Iowa, and Colorado, which do not appear in Ogburn’s compilation, but excludes Connecticut and Illinois.
- 50.
The states were California, Connecticut, Kansas, Maine, Massachusetts, Michigan, Nevada, New Hampshire, New Jersey, New York, Ohio, Vermont, Washington, Wisconsin, and Wyoming. See Landes and Solmon (1972, p. 56–7).
- 51.
These blacklists were also circulated throughout New England, making it difficult for these workers to find new work (Sumner 1910, pp. 69–70, 94–6).
- 52.
Weeks Report, op. cit. Weeks (1886).
- 53.
David Montgomery quotes the Senate testimony of R. D. Layton that the five hundred workers at the carriage works of James Cunningham and Sons in Rochester, New York, were locked in from starting time to quitting time so that no individual pieceworker could finish a stint and leave. See Montgomery (1989, p. 152).
- 54.
Massachusetts District Police (1887, p. 12). Most of the violations were apparently minor technical violations of the section requiring posting of a notice stating the hours of work that was amended during 1886. See Massachusetts, Laws 1886, C. 90.
- 55.
Manuscript census data for manufactures later than 1880 are not available. The 1890 data were destroyed by a fire at the Department of Commerce in 1921 and later data, to the extent that they might have survived, have been subject to privacy rulings by the Census Bureau and the National Archives. This situation may be changing with the recent access granted Timothy Bresnahan and Daniel Raff to the manuscripts of the 1929 and 1931 censuses.
- 56.
The 1920 Census lists the 1919 employment of women in North Dakota as only 336.
- 57.
See Landes (1980, pp. 482–3), especially Table 1. Note, however, that this table is incomplete and inaccurate because of errors in US Women’s Bureau (1931). For example, the Massachusetts law protecting women was first passed in 1874 (not 1879 as shown in Table 1 of Landes 1980). It was amended in 1879, dropping the word “willful”, to make prosecution of violators easier. Moreover, a large number of states such as California, Connecticut, Georgia, Maine, New Hampshire, New York, Ohio, Pennsylvania, and Rhode Island had passed laws regulating hours at earlier dates than those shown. See Table 5.3.
- 58.
The means of the independent variables in 1920 were: SOUTH = 0.31; URBAN = 41.0; % Female = 12.3; LAW = 0.694.
- 59.
The means of the independent variables in 1880 were: SOUTH = 0.18; URBAN = 0.49; % Female = 0.049; LAW = 0.186.
- 60.
247 U.S. 251, 38 Supreme Court 529 (1918) declaring unconstitutional United States, C. 432, 64 Cong., 1 sess.
- 61.
Male-dominated industries: SIC codes 7, 17, 24, 35, 37, 38, 49 and 76; Female-dominated industries: SIC codes 21, 22, 23, 26, and 39. See Table 5.2 above.
- 62.
We are grateful to Alan Dye for deriving these equations and their reduced forms and for demonstrating that they are exactly identified.
- 63.
For cases decided at the state supreme court level, see COMMONWEALTH V. HAMILTON MANUFACTURING COMPANY, 125 Mass. 383; WENHAM V. STATE, 65 Neb. 394, 400, 406; STATE V. BUCHANAN, 29 Wash. 602; COMMONWEALTH V. BEATTY, 15 Pa. Sup. Ct. 5, 17; RICHIE v. PEOPLE, 155 Ill. 98 (1895).
- 64.
It seems unlikely that this is the result of multicolinearity with any of the obvious variables. For example, use of steam power was weakly negatively correlated with urban location (R = −0.064).
- 65.
RICHIE V. PEOPLE, 155 Ill. 98 (1895).
- 66.
LOCHNER V. NEW YORK, 198 US 45 (1905).
- 67.
HOLDEN V. HARDY, 169 US 366 (1898).
- 68.
COMMONWEALTH V. HAMILTON MANUFACTURING COMPANY, 120 Mass. 383 (1876).
- 69.
MULLER V. OREGON, 208 US 412, (1908).
References
Atack J, Bateman F (1992) How long was the workday in 1880? J Econ Hist 52(1):129–160
Atack J, Bateman F (1999) Nineteenth-century US industrial development through the eyes of the census of manufactures: a new resource for historical research. Hist Methods J Quant Interdiscipl Hist 32(4):177–188
Atack J, Bateman F (2004a) National sample from the 1880 census of manufacturing: 2nd ICPSR version. Inter-university Consortium for Political and Social Research, Ann Arbor, MI
Atack J, Bateman F (2004b) State samples from the 1880 census of manufacturing: 2nd ICPSR version. Inter-university Consortium for Political and Social Research, Ann Arbor, MI
Baker EF (1925) Protective labor legislation. Columbia University, New York
Brandeis E (1918) Part 2: labor legislation. In: Commons J (ed) History of labor in the United States, 1896–1932, vol 3. Macmillan Company, New York
Cahill MC (1968) Shorter hours: a study of the movement since the civil war. Columbia University Press, New York
Commons JR (1918) History of labor in the United States, vol IV. The Machilolan Company, New York
Commons JR, Andrews JB (1927) Principles of labor legislation. Harper & Brothers, New York
De Graffenried C (1890) Child labor. Publ Am Econ Assoc 5(2):71–149
Derber M (1962) Testimony: the history of basic work hours and related benefit payments in the United States. In: Report and appendices, US presidential railroad commission, Washington DC, p Appendix 4
Edwards AM (1907) The labor legislation of Connecticut. Publ Am Econ Assoc 8(3):413–734
Goldin C (1988) Maximum hours legislation and female employment: a reassessment. J Polit Econ 96(1):189–205
Goldin C, Sokoloff K (1982) Women, children, and industrialization in the early republic. J Econ Hist 42(4):741–774
Goldmark JC (1912) Fatigue and efficiency. Russell Sage Foundation, New York
Illinois Bureau of Labor Statistics (1886) Fourth biennial report. HW Rokker, Springfield
Kelly MA (1950) Early federal regulation of hours of labor in the United States. Ind Labor Relat Rev 3(3):362–374
Kingsbury SM (ed) (1911) Labor laws and their enforcement: with special reference to Massachusetts. Longmans, Green, and Co., New York
Landes EM (1980) The effect of state maximum-hours laws on the employment of women in 1920. J Polit Econ 88(3):476–494
Landes WM, Solmon LC (1972) Compulsory schooling legislation. J Econ Hist 32(1):54–91
Massachusetts Bureau of Statistics of Labor (1872) Third annual report of the bureau of statistics of labor. Wright and Potter, Boston
Massachusetts Bureau of Statistics of Labor (1880a) Eleventh annual report of the bureau of statistics of labor. Rand, Avery & Co., Boston
Massachusetts Bureau of Statistics of Labor (1880b) Twelfth annual report of the bureau of statistics of labor. Rand, Avery & Co., Boston
Massachusetts District Police (1887) Report of the chief of the Massachusetts district police for the year ending December 31, 1886. Wright and Potter, Boston
Mitchell OG, Sorenson CT (1970) State labor legislation enacted in 1969. Mon Labor Rev 93:48–56
Montgomery D (1989) The fall of the house of labor. Cambridge University Press, New York
Ogburn WF (1912) Progress and uniformity in child-labor legislation. Columbia University, New York
Ohio Bureau of Labor Statistics (1879) Second annual report of the bureau of labor statistics …for the year 1878. Nevins & Myers, Columbus
Pennsylvania Secretary of Internal Affairs (1882) Annual report of the secretary of internal affairs of the commonwealth of Pennsylvania: part II, industrial statistics. Lane & Hunt, Harrisburg
Persons CE (1911) The early history of factory legislation in Massachusetts. In: Labor laws and their enforcement. Longmans, Green, New York, pp 123–125
Richardson JD (1908) A compilation of the messages and papers of the presidents, vol 3. Bureau of National Literature, Washington D.C.
Rosenbloom JL, Sundstrom W (1994) The decline in hours of work in us labour markets, 1890–1903. In: Grantham G, MacKinnon M (eds) Labour market evolution: the economic history of market integration, wage flexibility and the employment relation. Routledge, London, pp 161–84
Sokoloff KL (1986) Productivity growth in manufacturing during early industrialization: evidence from the American northeast, 1820–1860. In: Engerman SL, Gallman RE (eds) Long-term factors in American economic growth. University of Chicago Press, Chicago, pp 679–736
Sufrin SC, Sedgwick RC (1954) Labor law: development, administration, cases. Thomas Crowell, New York
Sumner H (1910) Report on condition of woman and child wage-earners in the United States: volume 9: history of women in industry in the United States. Government Printing Office, Washington DC
Towles JK (1908) Factory legislation of Rhode island. Am Econ Assoc Q 9(3):1–119
US Census Office (1872) 1870 census: volume 3. The statistics of wealth and industry of the United States. Government Printing Office, Washington DC
US Census Office (1928) Fourteenth census of the United States: manufactures, 1919, vol 8. Government Printing Office, Washington DC
US Congress, Senate (1910) Report on condition of woman and child wage-earners in the United States: volume 18: employment of women and children in selected industries. Government Printing Office, Washington DC
US Department of Commerce (1975) Historical statistics of the United States from colonial times to 1970. Government Printing Office, Washington DC
US Department of Labor (1896) Tenth annual report of the commissioner of labor. Government Printing Office, Washington DC
US Department of Labor (1904) Tenth special report of the commissioner of labor. Government Printing Office, Washington DC
US Department of Labor (1915) The boot and shoe industry in Massachusetts as a vocation for women. Government Printing Office, Washington DC
US Department of the Interior, Census Office (1883) Compendium of the tenth census. Government Printing Office, Washington DC
US Women’s Bureau (1931) Chronological development of labor legislation for women in the United States. US Women’s Bureau, Washington DC
Weeks JD (1886) Report on the statistics of wages in manufacturing industries: with supplementary reports on the average retail prices of necessaries of life, and on trades societies, and strikes and lockouts, vol 20. Government Printing Office, Washington DC
Whaples R (1990) Winning the eight-hour day, 1909–1919. J Econ Hist 50(2):393–406
Wright CD (1900) The history and growth of the United States census, vol 194. US Government Printing Office, Washington D.C.
Acknowledgements
This paper was originally penned in 1987 and 1988 while the authors were Professor at the University of Illinois Urbana-Champaign and Visiting Professor at Harvard University and Professor at Indiana University respectively. Jeremy Atack moved to Vanderbilt University from Illinois in 1993. Fred Bateman moved to the University of Georgia in 1990. He died in 2012. In preparing the original draft, we benefited from perceptive comments by participants in seminars at the Harvard University, University of California at Los Angeles, University of Chicago, University of Illinois and Yale University Economic History Workshops and participants at 1988 Cliometric Conference. Among individuals making substantive comments and improvements were Lee Alston, Lou Cain, Alan Dye, Barry Eichengreen, David Galenson, Mary Eschelbach-Gregson (now Hansen), Larry Neal, Joseph Reid, Elyce Rotella, Andrew Seltzer, Kenneth Snowden, Richard Sutch, Peter Temin, Mark Toma, Thomas S. Ulen, David Weiman, Jeffrey Williamson and Robert Zevin. They are not responsible for any remaining errors or confusions and we apologize to anyone whose contribution we have missed. The principal change to the original version of this paper is to reflect the U.S. Supreme Court decision in UAW vs JOHNSON CONTROLS (499 U.S. 187 (1991)) that was handed down after the paper was originally written.
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Atack, J., Bateman, F. (2018). Who Did Protective Legislation Protect? Evidence from 1880. In: Hall, J., Witcher, M. (eds) Public Choice Analyses of American Economic History. Studies in Public Choice, vol 35. Springer, Cham. https://doi.org/10.1007/978-3-319-77592-0_5
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