Crime and Punishment in American History - Lawrence M. Friedman [77]
Criminal statutes relating to health were a miscellaneous lot. Some were simply reporting laws; doctors had a duty to tell local boards of health about a whole raft of contagious diseases. Doctors (and midwives) in New Jersey (1895), for example, had to report any newborns with swollen, inflamed, or reddened eyes.52 Another group of laws regulated foods and drugs, either as to their ingredients or to their labeling. The same session of the New Jersey legislature just mentioned (1895) outlawed the sale of candy “adulterated by the admixture of terra alba, barytes, talc, or other mineral substance,” or by “poisonous colors, flavors, fusil oil, intoxicants or other ingredients deleterious or detrimental to health.” Another law made it unlawful to sell cakes or biscuits containing “yolka, yolkaline, turmeric, chrome yellow or any other substitute for eggs,” unless the label said so.53
Labor and Management: The Conditions of Labor
Public health was also often used as an excuse for regulation (in the struggle over oleomargarine, for example). This was egregiously true in the struggle between capital and labor. What workers wanted, after all, was more money and better conditions of labor. It is hard to draw the line between a pure “labor” law and a law about the health and safety of workers—if, indeed, there is any sense to drawing a line at all. Legally, however, there was a great difference: the state had plenary power to ensure public health and safety; but business vigorously denied the state’s power to intervene in strictly economic disputes—and “redistribution of income” was a dirty phrase.54
Many states responded to pressure from organized labor by imposing duties on employers—to pay workmen in cash, for example, or at frequent intervals; or by outlawing company stores. We have already seen examples of these late nineteenth-century statutes. These were, as usual, criminal statutes in form—that is, they carried with them some sort of criminal penalty for violation, like a thorn on a rosebush.
The late nineteenth century was also the age of judicial review; the courts were flexing their muscles as never before. Some of the most famous court battles of this period turned on the validity of labor laws. In a few rather spectacular cases, courts struck down labor laws as unconstitutional. In New York, the state had prohibited the “manufacture of cigars and preparation of tobacco ... in tenement-houses.” The Court of Appeals, the highest court in New York, declared this statute void in 1885.55 In California, a statute required employers to pay workers at least once a month. A quartz mine company appealed a conviction under the statute; the Supreme Court of California struck down the law in 1899. Such a law, the court said gravely, treats the intelligent workman as an “imbecile”; it takes away his “right” to make labor contracts for himself.56
It was this sort of attitude that encouraged legislatures to disguise labor laws as health laws, in the hope that courts would uphold them on that basis. The massive Illinois act on factories and workshops, passed in 1893, outlawed the manufacture of clothing (including “coats, vests, trousers, knee-pants, overalls, cloaks, shirts, ladies’ waists”), purses, feathers, artificial flowers, or cigars, in any “tenement or dwelling house used for eating or sleeping purposes,” except by the “immediate members of the family” who lived there. Factory inspectors would visit workshops to see that they were “in a cleanly condition and free from vermin and any matter of an infectious and contagious nature.” No child under fourteen was to work in any factory; a child worker under sixteen needed an affidavit from parents or guardians. No “female” was to be “employed in any factory or workshop more than eight hours in any one day or forty-eight hours in any one week.”57
But the statute was doomed. The Supreme Court of Illinois, in a strong if retrograde opinion, struck it down. It interfered with freedom of contract: “Labor is property, and the laborer has the