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"Restless Movements Characteristic of Childhood": The Legal Construction of Child Labor inNineteenth-Century MassachusettsAuthor(s): James D. SchmidtReviewed work(s):Source: Law and History Review, Vol. 23, No. 2 (Summer, 2005), pp. 315-350Published by: American Society for Legal HistoryStable URL: http://www.jstor.org/stable/30042871 .Accessed: 25/01/2012 12:55

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"Restless Movements Characteristic of Childhood": The Legal Construction of Child Labor in Nineteenth-Century

Massachusetts

JAMES D. SCHMIDT

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, Mas- sachusetts 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 Massa- chusetts. His case led the court to examine the development of child labor law in Massachusetts, looking into both its statutory genesis and legislative intent. The 1909 statute on which Elias relied, Justice Arthur Prentice Rugg declared, "was passed in the exercise of the police power as a humanitarian

James D. Schmidt is an associate professor of history at Northern Illinois University <[email protected]>. He would like to thank Beatrix Hoffman, Rosemary Feurer, Kriste Lindenmeyer, and the four anonymous reviewers for Law and History Review for their helpful comments and criticisms.

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, Summer 2005

measure and in the interest of the physical well-being of the race. It prevents children of immature judgment and undeveloped bodies from working under conditions likely to endanger their health, life, or limb." Children under fourteen, Rugg averred, lacked "prudence, foresight, and restraint." Indeed, the "sole cause" of Elias's injury was "temperamental uneasiness and heedlessness" caused by "the restless movements characteristic of childhood when placed in the midst of rapidly moving machinery." Elias, the court ruled, could recover damages for his injury.'

At first glance, Elias Berdos's story comports well with received narra- tives about child labor in the United States and efforts to regulate it. Elias came to the United States as part of the new immigration of the late nineteenth and early twentieth centuries, he worked in urbanized New England, and he found a friend in a progressive-era judge imbued with the romantic sentiments of bourgeois childhood. Hence, his narrative aligns with most accounts of child labor and its relation to law. While noting early legislative action, most historians of child labor have focused on progressive era movements that aimed to abolish or curtail children's wage work through statutory prohibition or regulation. As a result, these accounts pay less attention to the role of law in the construction of children's wage work, usually tracing its origins to the social and economic changes of the nineteenth-century market revolution. In particular, little has been said about the role of the courts in either the rise or the fall of child labor in industry. Recent work by legal historians of free labor, although focused primarily on adults, has envisioned a quite different role for law in the shaping of capitalist wage relations. Although disagreement about causation remains, most recent scholars have argued that legal rules shaped capitalist labor relations from the outset by legitimating the hierarchies of power inherent in wage work, while simultaneously obscuring those inequalities from laborers themselves. Always contested and negotiated, legal rules nonetheless marked the arena in which struggles between employers and workers would take place. In delving into this process, scholars have explored matters of race and gender as well as class, but they have not investigated closely the influence of age. Applying the insights of recent legal scholarship on free labor to children's work, however, raises some important questions. Most simply, did the law perform the same role in shaping child labor? If so, why and how did child labor gain legal and cultural legitimacy in the nineteenth century only to lose it by the twentieth? Finding answers to these questions can provide valuable insights for both the history of labor and the history of childhood.2

1. Berdos v. Tremont and Suffolk Mills, 209 Mass. 489 (1911). 2. Representative works in the historiography of child labor and its regulation include

Jeremy P. Felt, Hostages of Fortune: Child Labor Reform in New York State (Syracuse,

Restless Movements Characteristic of Childhood 317

This article investigates the role of law in shaping children's wage work. It uses Massachusetts as a case study and focuses on the courts. It argues that the courts helped create a free market in labor for children, one that reformers in state legislatures as well as judges themselves would eventually seek to limit or abolish outright. This process occurred at two levels. On one level, courts established rules that would govern the actual terms of minors' participation in the labor market. To understand this process, it is critical to remember that when the nineteenth century began, law restrained full participation by minors in a capitalist labor market. In the eighteenth century and before, most children's work outside the household constituted a form of bound labor, not free labor. Formal indentures, either for apprenticeships or for simple service, exchanged labor in return for support and education. Written and sealed, such agreements represented a bargain between a parent, usually a father, and a master, not between a child and an employer. Long-standing legal precedents, often referred to as the "privilege of infancy," prevented minors from making contracts for anything other than necessaries or education. While all this does not mean that young people never worked for wages, normal and legitimate child labor occurred only in bound relationships that were regulated by statute.3

N.Y.: Syracuse University Press, 1965); Walter Trattner, Crusade for the Children: A His- tory of the National Child Labor Committee and Child Labor Reform in America (Chicago: Quadrangle Books, 1970); Viviana A. Zelizer, Pricing the Priceless Child: The Chang- ing Social Value of Children (New York: Basic Books, 1985); Priscilla Ferguson Clement, Growing Pains: Children in the Industrial Age, 1850-1890 (New York: Twayne Publishers, 1997); and Hugh D. Hindman, Child Labor: An American History (Armonk, N.Y.: M. E. Sharpe, 2002). A notable exception to the general concentration on the progressive era is Joseph M. Hawes, The Children's Rights Movement: A History of Advocacy and Protection (Boston: Twayne Publishers, 1991). For examples of legal development of free labor in the antebellum period, see Robert J. Steinfeld, 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. 6 and passim; Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (New York: Cambridge University Press, 2002), esp. 1-26, 290-312; Christopher L. 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 Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998); James D. Schmidt, Free to Work: Labor Law, Emancipation, and Reconstruction, 1815-1880 (Athens: University of Georgia Press, 1998), ch. 1. For an excellent summary and critique of the literature on labor law, see John Fabian Witt, "Rethinking the Nineteenth-Century Employment Contract, Again," Law and History Review 18 (2000): 1-56.

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


Over the course of the early nineteenth century, Massachusetts courts gradually abandoned this set of legal rules, replacing them with one that allowed minors to enter the world of free labor. This slow evolution of the rules occurred in three areas of law: apprenticeship; contract; and industrial accidents. Between the 1790s and the 1830s, Massachusetts courts preserved many of the statutory and common law rules that undergirded apprenticeship. This prevented apprenticeship from evolving as capitalism took hold in industrializing America. More important, it meant that the legitimacy of most labor arrangements for and by children would be judged by the emerging common law of contracts, not by the statutory regime that had regulated apprenticeships and other bound child labor. In a second phase of judicial activity completed by the 1840s, a series of children's labor contract cases led the Massachusetts courts to produce a new set of rules for children's work. The courts authorized minors to make wage contracts for themselves by fashioning the concept of implied parental consent. At the same time, the courts allowed minors to break their labor agreements at will, preserving the notion that children's work differed from adult free labor. Finally, between 1851 and 1911, the Massachusetts courts considered the question of age in industrial accidents, first includ- ing children with emerging common law rules, then setting up a special standard for minors, in turn weakening it, and finally adopting in Berdos v. Tremont and Suffolk Mills the growing cultural and legal consensus of a special standard of care for underage workers.4

Rules created in this long process helped set the specific terms of children's wage work, but law worked on a second level as well. Law about children's labor served as an epistemological system. It named divergent social practices, created seemingly fixed categories and boundaries, and supplied a language for talking about "child labor." In short, judicial discourse helped construct for children's wage work what Christopher Tomlins has called a "legality." The courts provided a forum where central questions about the social location of children and the cultural meaning of childhood under capitalism could be answered. The market revolution in the industrializing Northeast brought to the forefront new understandings of human agency. The central assumptions of a contract-driven society-self- ownership, consent, reciprocity-necessarily raised troubling questions when applied to young people. Did they own their own labor power and

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.


could they dispose of it as their own agents? Did young people possess a will of their own, one that would allow them to consent to a bargain? Could they appreciate the terms of a contract or the risks of a job? Ultimately, were children full participants in a market society or not? These questions were asked and answered in many places in nineteenth-century America: in newspapers, magazines, novels, poetry, and plays; in sermons, speeches, and tracts; in interactions between children, parents, reformers, and local officials. By supplying another set of answers, the courts acted as creators of culture as well, helping to define the capabilities of young people, both legally and socially. Over the course of the nineteenth century, judicial discourse increasingly imagined young people as capable of judging their own interests and acting for themselves. In the end, however, this change in legal imagination provoked new questions about young people's agency and prompted a return to limitations of their legal status based on a shared conception of young people's natural incapacities.5

Apprenticeship

By its nature, apprenticeship created legal and cultural barriers to a free market in child labor, for it comprised part of the body of law that undergirded the legal incapacity of minors and prevented them from making valid contracts. As such, apprenticeship formed part of the larger web of hierarchical arrangements that defined social relations between nominally free persons in early America: husband-wife, parent-child, master-servant, town officials-paupers. Unlike the fictional equality that would accompany the rise of a market society, all of these relationships presupposed a superior and a subordinate party. Whether true in reality or not, all assumed a reciprocal exchange of protection and support for obedience and, usually, labor. In turn, all presumed a certain level of incapacity on the part of the inferior party, in part because of imagined natural incapacities, but also because inferior parties were under the legal control of another and hence

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. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2002), 1-20, 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 special- ized practices, and the products of its institutions," he argues.


were not full legal persons. All of this meant that children could not be seen as a party to a contract, that legally they could not be understood as free laborers.6

The legalities of apprenticeship clashed directly with evolving notions of contract in late eighteenth- and early nineteenth-century America. In an indenture of apprenticeship, the child was not a party, although his or her third-party consent to the bargain might be required. Rather, the exchange occurred between parent and master; it represented a transfer of the rights of one superior party to another. The master acted in loco parentis, providing education and support in return for the minor's labor. Furthermore, the law presumed this bargain took place in a face-to-face society, where master and parent knew and trusted each other. Both the assumptions and practices of such relationships contradicted the social and legal relations of a market society, ideas that were inchoate in the Early Republic but held increasing sway as the nineteenth century progressed. Labor law presumed adults, usually men. Adopting the assumptions of Lockean liberalism as well as the gendered meanings of republican man- hood, it envisioned contracting parties as equals, people who owned their own bodies, who possessed full legal personhood, and who could assess the value of their labor and the terms of their employment. The apprenticeship of minors, like slavery and servitude, lay grounded in starkly different principles. Moreover, unlike adult dependents in Early America who could eventually be imagined within the framework of contract, children presented an insurmountable natural barrier to its expansion. At some young age, infants must necessarily be defined as outside the assumptions of contract, for their physical development truly incapacitated them from exercising judgment and consenting to a bargain. As the courts grappled with the contradictions between apprenticeship and contract, they slowly resolved these tensions by creating separate bodies of law for children who worked for education and support under apprenticeships and those who worked solely for wages under other kinds of contracts. By the end of this process, children working solely for wages-a relationship once legally and culturally circumscribed-had come to be accepted as normal.7

6. Shammas, History of Household Government, esp. ch. 4; Tomlins, "Subordination," 65-73.

7. On apprenticeship generally in this period the standard work is W. J. Rorabaugh, The Craft Apprentice: From Franklin to the Industrial Age (New York: Oxford University Press, 1986). See also Mary Ann Mason, 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. 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?:


The emergence of child labor as a matter of contract ungoverned by existing statute depended on the maintenance of strict definitions for apprenticeship and bound child labor. Litigations in other states, such as the important 1793 Pennsylvania decision in Respublica v. Keppele, began to limit the use of non-apprenticeship indentures. In Massachusetts, questions about the viability of older forms of child labor were answered mostly in litigations about apprenticeship itself. Such cases compelled judges to decide whether apprenticeship would remain a hierarchical form of bound labor or whether it would evolve into something new.

Older definitions of apprenticeship were coming under considerable strain. In Massachusetts as elsewhere, children, parents, and town officials had begun to make agreements that, while called apprenticeships, looked more and more like simple wage work for children. Such arrangements might contain no provisions for education in general or training in a specific craft. Masters and parents frequently tried to sell indentures to other parties. More and more young people ran away, often close to the end of their indentures when their value to their masters was on the rise. The litigants in these cases brought new understandings of children's work to the courts, looking for legitimation. On the one hand, some sought approval of new kinds of apprentice contracts, ones that would still be binding but would avoid the strict regulations imposed by statute. Others contended that parents no longer possessed the power to bargain away their children's labor. In deciding such questions, Massachusetts's conservative Federal- ist judges held the line, refusing to allow the assumptions of contract and market relations in general to penetrate the logic of apprenticeship. Apprenticeship would remain a binding indenture that required education and support in return for labor. More important, it would be conceived as a personal trust between a parent and a master, not an exchange between an employer and a youthful free worker.8

In part, the maintenance of apprenticeship in Massachusetts originated in cases that tested the power of the relationship's statutory definition. These litigations grew out of two statutes passed in 1793 and 1794. The 1793 law was particularly important, for it authorized local authorities to

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 John E. Murray and Ruth Herndon, "Markets for Children in Early America: A Political Economy of Pauper Apprenticeship," Journal of Economic History 62 (2002): 356-82. Other accounts include Janet L. Dolgin, "Transforming Childhood: Apprenticeship in American Law," New England Law Review 31 (1997): 1113-91; and William P. Quigley, "The Quick- sands of the Poor Law: Poor Relief in a Growing Nation, 1790-1820," Northern Illinois University Law Review 18 (1997): 1-98.

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


investigate the treatment of apprentices and to inquire as to whether the terms of the indenture were being met. William Rorabaugh has argued that these laws responded to post-Revolutionary challenges to masters' authority, and indeed, upholding the power of masters was clearly an aim of the legislature. Yet litigations of these statutes afforded justices the opportunity to reinforce the duties of masters as well. For instance, an 1814 case upheld a decision by the Boston Overseers of the Poor, who released Julia Ann Griffin from Isaac Hubbard, accusing Hubbard of "abuse, ill- treatment, and neglect." Ten years later in Phillipston, the overseers sued Samuel Ware for refusing to maintain or teach his apprentice, Amos B. Jones, even after Jones had lost a limb in a farm accident (although he had, at least according to his master, stolen money from the house). In consid- ering the case, the state supreme court ruled that Ware's responsibilities existed independently from Jones's ability to work for him. "If it were otherwise, and the master should not supply a sufficient quantity of food for a single day, or the apprentice should disobey a single command," Justice Putnam wrote, "the contract would be dissolved and the apprentice would lose the benefit of the instruction which the legislature intended should be given to him." These two examples involved bindings to families that do not appear to have been craft households. An 1827 case demonstrates how local officials also placed children in craft apprenticeships. Here, the selectmen of Williamsborough had bound George Strong, a boy of fifteen whose father had died, to one D. Butler, a paper-maker. When Strong ran away, his master sued the selectmen for breach of the covenant. Looking into the case, the Supreme Court concluded that the indenture had never been valid for it never required the master to provide any other education than that required for the craft. All of this is not to say that local officials or jurists in Massachusetts sought to curtail or abolish apprenticeship as a form of child labor. Rather, they aimed to keep in place customary understandings of apprenticeship as a subordinate relation that would educate young people for lives as economic producers and, more generally, would inculcate them with values leading to the acceptance of authority.9

In affirming standard meanings of apprenticeship, Massachusetts jurists might seem like mere formalists upholding the statute. This view would miss the deeper assumptions about social relations that they articulated. Theirs was a complicated vision that sought to preserve the hierarchies of the eighteenth century in the face of emerging ideas about contract, a point illustrated by the issue of consent. As a prime marker between

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


bound and free labor, consent lies at the heart of modem thinking about contract, and indeed about social relations generally. As Holly Brewer has persuasively argued, courts, treatise writers, and political theorists starting in the eighteenth century began to use childhood as a way to understand the role of consent in political culture. Throughout the nineteenth century, Massachusetts courts affirmed the idea of children's consent to bound relationships. As late as 1850, the court noted that consent was critical and had to be explicit; it could not simply be implied by the minor's signature somewhere on the indenture. Still, consent did not equal an expression of will, an exercise of legal capacity. In apprenticeships, minors remained third parties.10

While the affirmation of consent implied some incorporation of the language of contract, the court refused to blur the lines between the apprenticeship and children's wage work any further. One particular type of apprenticeship litigation-those involving attempts to "assign" (that is, trade) indentures between masters-compelled jurists to articulate and clarify the distinctions between apprenticeship and child labor. The impli- cations of this seemingly technical debate were immense, for if indentures could be assigned, then a market in apprentices as bound laborers could exist. Evidence from other states, especially in the mid-Atlantic region, suggests that "brokers" carried out a lively trade in apprentices well into the nineteenth century. As elsewhere, Massachusetts courts sought to end the practice. Prohibiting assignment forced judges to draw two important lines. One affirmed apprenticeship as a personal relationship between two households. The nature of the indentures being assigned and the arguments made in favor of these agreements forced judges to draw a second line, one that distinguished a valid apprenticeship from a mere contract to work. As such, children's labor outside apprenticeship would become a form of "free" labor to be judged by common-law rules of contract, while formal apprenticeship itself remained a form of "unfree" labor to be examined by statutory guidelines."1

In one of the earliest assignment cases, Hall v. Gardner (1804), the court established a guiding principle-that apprenticeship was a "personal trust." The case involved James Mye, a boy of the Mashpee Indians, a group placed under direct state guardianship by the state government. Mye had been bound out at age eleven by the state guardians to Joshua Hall. Hall

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

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).


then assigned Mye to a ship that set out on a lengthy seal-skinning voyage. In a complicated dispute over these arrangements as well as for the proceeds of Mye's labor, the court refused to countenance the assignment. Apprenticeship, the justices declared, was "a mere personal trust" and therefore could not be traded away. Furthermore, Justice Strong added, the boy himself legally possessed "no will of his own." Therefore, his assent to the arrangement meant nothing. Both parts of the decision revealed understandings of childhood and of labor at odds with market society. As a child, James Mye was not and could not be a party to a contract, for as a child he did not possess the ability to judge and act in his own behalf. In any case, James Mye's desires were not the important question. Rather as a "personal trust," an apprenticeship occurred between two men who did have the independence to make such an arrangement. In an imagined face- to-face world, such men knew and trusted each other, and this trust provided the only sure basis for the transfer of authority over the minor.12

In Hall v. Gardner, the Massachusetts's court cast apprenticeship into a pre-industrial mold of household government, assuring that it would not evolve into a form of child slavery. Another assignment case a few years later stamped the other side of the coin, outlining the difference between apprenticeship and simple wage work for minors. Davis v. Coburn (1811) involved much more directly what people, both then and now, think of as an apprenticeship. On March 30, 1808, James Davis bound his seventeen- year-old son John as a carpenter's apprentice to Stephen Davis of Bradford, New Hampshire. In July of the following year, Stephen Davis sold the remainder of John's time to Leonard Coburn of Lynn, Massachusetts for $150 to be paid in three fifty-dollar installments. About a year later, John Davis disrupted this tidy arrangement by running away. Leonard Coburn refused to pay the rest of the debt for John's time, and Stephen Davis sued.13

The litigation illuminated competing visions of children's work, one that looked back to the customary place for apprenticeship and one that looked forward to the contract regime of the nineteenth century. The latter view was voiced by Joseph Story, who argued the case shortly before taking his seat on the U.S. Supreme Court. Knowing that Coburn could easily rely on the ruling in Hall, Story had his work cut out for him. Consequently, he had to stake out a position that envisaged a much more fluid nature for apprenticeship. "Strictly speaking," Story averred, "this is not an assignment,

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

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


but a mere agreement for the service of a minor." In other words, Stephen Davis had not violated his duties as a master. Indeed, Story continued, the agreement provided for John to learn a beneficial trade, and in fact, John had consented to the deal. The arrangement was a "lawful hiring... unless it is established that at all events an apprentice is to live exclusively with his master, and cannot be in the service of another by his consent." Such a restrictive definition of apprenticeship, Story concluded, "would work manifest injustice." Story's argument represents an important discursive shift, for he imagined children's work within the realm of contract. The utility and indeed the legitimacy of such dealings were to be judged by the criteria of benefit to and consent from the minor. In keeping with his commitment to using the law to promote economic development, Story envisioned a new kind of apprenticeship, one much closer to contract, wherein minors could leave bound relationships and circulate more freely in the labor market.

Story's plea fell on deaf ears, none deafer than those of the aging Fed- eralist Theodore Sedgwick, who penned the opinion. Increasingly embit- tered by the rise of democratic politics and culture, the sixty-five-year-old justice engaged in an extended discussion of the nature of apprenticeship, a discussion he himself admitted was not necessary in deciding the dispute. His opinion probed deeply the scope and limits of the patriarchal authority exercised by both fathers and masters. Fathers, whether in New Hampshire or in Massachusetts, had the right to bind their sons as apprentices. If that were somehow not the case, there would be "no pretence [sic] for the case at the bar, for it would be a gross violation of natural justice, moral obligation, and personal liberty, for a man, having no lawful authority to sell a human being." That Sedgwick should locate the case within anti-slavery discourse should not be surprising. He had made a career out of arguing freedom suits for runaway slaves and, in the last two decades of his life, he participated in the Pennsylvania Abolition Society.'5

Nonetheless, Sedgwick remained a Federalist defender of patriarchal authority and of property rights, a stance evinced all the more by his support of the 1793 Fugitive Slave Law. Hence, he investigated the case before him as a question of property. By the original indenture, Stephen Davis

14. Davis v. Coburn, 305. On the nature and uses of contract language, see Stanley, From Bondage to Contract, chs. 1-2. On Story, the law, and economic development, see R. Kent Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 65, 115-54, 403 n128.

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


acquired "a property in the services of the apprentice," Sedgwick declared. "Was it a property which he could assign to a stranger?" To answer this question Sedgwick interrogated the authority of fathers. During a child's minority, fathers could "dispose of a requisite portion" of their authority for education and instruction. This power existed for the "welfare of the child" and should not be used carelessly. A "due regard for the interest of his child" would render a father "cautious to what hands he confides the trust; and for this purpose a wise and prudent parent will be as anxious about the moral qualities of the man, to whom he delegates his authority, as to his competency in other respects." All this fatherly care would be for naught, Sedgwick concluded, if the master could immediately turn over the child to someone else.16

Broadly speaking, Davis v. Coburn offered the court two quite different paths for the future of apprenticeships. On a basic level, adopting Story's conception would have legitimized the trading of apprentices. Beyond that, it would have begun to alter the nature of the relation itself, turning it from a fixed transfer of patriarchal authority from a father to a master and making it instead into the "mere agreement" that Story proffered. For Story, legitimacy rested on principles of contract-consent and benefit, principles the court would eventually adopt in contract cases. Instead, Sedgwick insisted, as most of his brethren in the rest of the country would continue to insist for decades to come, apprenticeship must remain a special relationship, neither a cheap form of child slavery, nor an unbounded species of free labor. Apprenticeships were made by "wise and prudent" parents who sought "moral qualities" in a prospective master. Envisioning the relationship in this manner made it fundamentally incompatible with a free market in child labor, for it required more than a consensual exchange of labor for cash. More important, it left bargaining power entirely with parents, denying the growing reality that minors were in truth becoming parties to labor contracts.17

The boundaries that the court was beginning to erect between apprenticeship and contract appear even more clearly in a litigation considered a year before Davis v. Coburn. The case, Day v. Everett, presented directly the question of whether apprenticeship could be used to legitimate an arrangement that was more or less wage work. In July 1799, Levi Day bound his son to Aaron Everett for six years in return for a series of payments, the last of which remained unpaid at the time of the suit. Fay, Everett's

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).


attorney, took a novel position. A proviso in the 1794 apprenticeship statute that stipulated all benefits must accrue directly to the minor, he argued, had all but outlawed fathers' binding out their children for money. Urging the "expediency and humanity" of this provision, he contended the law was "calculated to protect children from the mercenary views of parents, who would sacrifice the present comfort and future prospects of their children to a present gain for themselves." Fay acknowledged that if fathers contracted out their children's services, then they could receive the benefits, for they were still bound to support their dependents. An apprenticeship, on the other hand, transferred filial duty to the master, "so that there is no shadow of reason, why the parent should make a pecuniary benefit to himself out of the contract." In response, Day's attorney took a stance similar to the line of reasoning Story would offer a year later. "Notwithstanding all the dangers and mischiefs which have been stated to arise to minor children from the unfeeling avarice of unnatural parents," he pointed out, the agreement was still valid at common law, even if it did not conform to the statute. Hence, his client deserved his fifty dollars.18

Theophilus Parsons, who would later write a leading American treatise on contract law, used the opinion to clarify the growing distinction between apprenticeship and children's labor contracts. Parsons moved quickly to squelch the notion that the 1794 statute had taken away fathers' rights to sell their sons' labor to others for a fixed period of time. Rather, he argued, the 1794 act outlined the statutory constraints on both masters and apprentices. An apprentice was liable to corporal punishment, compulsory return, and discharge for "gross misbehavior." Conversely, the law also constrained masters, for it allowed apprentices to seek discharge for cruel treatment. Arrangements that did not conform to the statute, Parsons continued, would be held valid, but, and here was the crux of the matter, parties could not avail themselves of its powers and limitations, a situation that "parents and guardians, as well as masters, ought duly to consider."19

Cited frequently in other states, Day helped validate a type of child labor becoming increasingly common in the first half of the nineteenth century. Numerous cases from elsewhere demonstrate that during the first few decades of the century children frequently worked in arrangements that were neither apprenticeships nor contracts but rather a hybrid of both. As with Levi Day's son, children found themselves placed by parents into long-term arrangements, sometimes merely for cash, sometimes for training and support, sometimes for both. Parents, children, and employers often

18. Day v. Everett, 7 Mass. 145 (1810), 146. For an extended discussion of this case, see Dolgin, "Transforming Childhood," 1132-38.

19. Day v. Everett, 7 Mass. 145 (1810), 147-49.


believed they had formed an apprenticeship, or at least some type of bound relationship, only to find that they had failed when the matter came to court after a dispute. With earlier understandings of children's work still in their imaginations, such people thought that they had obligated both sides to abide by the long-standing customary and legal rights and restrictions. Cases such as Day v. Everett presented courts with the opportunity to broaden the authority of apprenticeship statutes beyond their increasingly irrelevant application to the arrangements people were actually making. Instead of allowing statutory or customary regulations of apprenticeship to apply in these cases, decisions such as Day cordoned off apprenticeship as a special form of child labor, one not likely to evolve with the market revolution.20

Taken together, the decisions by Massachusetts courts in the Early Re- public marked an important turning point in the legal history of children's wage work. Responding to disputed arrangements that no longer fit eighteenth-century structures of domestic and labor law, the state's Federal- ist bench sought to protect those structures nonetheless. By preserving apprenticeship in its eighteenth-century form, the court maintained the powers of masters and parents, and more importantly, confirmed the legal incapacity of minors. By drawing these legal lines around apprenticeship, however, the court created a new set of questions about how to treat the rest of children's work. Working parents and children continued to make labor agreements that did not conform to statutory or judicial rules. With apprenticeship set apart as a formal relationship, the legitimacy of other work arrangements had to be judged by common-law rules that governed adult wage work, not by older statutory regulations that had applied to minors. While the discourse of contract incorporated many of the tenets of household governance, the opposite occurred as well: it opened up previ- ously unchallenged hierarchies to matters of will, consent, and reciprocity. For young people, it brought their customary status as natural and legal dependents into question.21

Contract

In the decades before the Civil War, the Massachusetts court slowly worked out a set of contract rules for children's wage work. Doing so required resolution of a critical contradiction, both in the rules themselves and in the

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

21. Tomlins, "Subordination," 70-71.


broader legalities of childhood and labor. On the one hand, received custom and precedent granted fathers an absolute right to their children's wages and stipulated that minors themselves could not make binding contracts for anything more than support or education. Consequently, young people could not enter the labor market as their own agents unless they had been "emancipated" from the control of their fathers, or "given their time," in the parlance of the day. Bargains made by unemancipated minors were automatically void, or at least, voidable. On the other hand, developing labor law held all labor contracts to be binding, authorizing employers to withhold wages from workers who quit without permission. This legal contradiction raised fundamental questions about the legitimacy of children's work outside apprenticeship and about the larger issue of rights and obligations of children in a capitalist society. By 1860, the court had resolved the legal contradictions by fashioning two new rules about children's labor contracts. One, "implied emancipation" (or "implied assent") supplied a fictional way around parental control of minors' earnings. A second rule allowed minors to break their agreements at-will while holding their employers bound to their half of the bargain. In reaching this conclusion, the court began to erode children's legal incapacity, increasingly envisioning and legitimating young people as agents in a capitalist labor market.22

Emancipating young people from household government was certainly not the intention of Massachusetts jurists. In the Early Republic, the same court that policed the boundaries of apprenticeship upheld fathers' rights to their children's earnings as well. In an 1804 litigation, often cited later, Chief Justice Parsons reiterated the "very well settled" rule that "parents are under obligations to support their children, and that they are entitled to their earnings." Parents might sign away that right or authorize payment directly to children, but without explicit authorization children's wages belonged to parents. While the court here used the word "parents," the law did not presume gender equality. Rather, the court made it clear that the right to wages came from the obligation to support, an obligation and a right pertaining primarily to natural fathers. In 1807, the court found that mothers incurred no legal obligation to support their children, and hence, no claims for wages could be raised. Nor, the court decided, could stepfathers press claims for wages, because they, too, were not legally bound to support the children of their households.23

For Parsons and his brethren in the early nineteenth century, the legiti-

22. Stanley, From Bondage to Contract, esp. ch. 5; Witt, "Rethinking the Nineteenth- Century Employment Contract, Again," 9-10.

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


macy of father's rights rested on reciprocity, but it was the organic reciprocity of the pre-industrial household and its systems of authority. Cases that came to the court, however, revealed households increasingly under stress. As a result, the court began to seek new legal understandings of the economic relationships between parents and children and of the place of minors in the labor market. In a set of important opinions between 1818 and 1825, Chief Justice Isaac Parker sketched the outlines of this new paradigm. In doing so, he aimed to uphold paternal authority, not weaken it, a point he made clear in Angel v. McLellan (1819). Arthur McLellan, a "respectable merchant," found himself in a bind after his son, convicted of a felony, skipped town and headed for the West Indies. When the boy ran up debts with a merchant there, McLellan sued, in part to test the principle of whether fathers were responsible for the debts their children incurred outside the household. In denying the claim, Parker declared that children who left home to avoid parental discipline carried no credit with them, for if they did "parental influence" would be greatly reduced and children might be inclined to withdraw from the "government" of their fathers.24

Wayward sons lost their claim on familial support if they escaped paternal control, but familial reciprocity worked both ways. If parents failed in their obligations, they lost economic control of their children. Parker explored this theme in Nightingale v. Withington (1818). In the course of his opinion, he discovered for the first time what became one part of the legal solution to the contradictions presented by children's labor contracts: implied emancipation. Generally, fathers' rights to their children's earnings rested on the obligation of support. "But," Parker declared, "where the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle but that of slavery, which will continue his right to receive the earnings of the child's labor." Parker's invocation of "slavery" underscored his and his brethren's understanding of paternal authority as a hierarchical, yet reciprocal, relationship. Moreover, it evinced his Federalist assumption that parent and child relationships should be fixed, like other hierarchical relationships. Much as Parker might like to see such fixed relationships continue, he understood that they were under stress. In a passage that introduced an issue the court would resolve twenty years later, Parker acknowledged irregularities in patriarchal authority. "Thus, if the father should refuse to

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


support a son, should deny him a home, and force him to labor abroad for his own living-or should give or sell him his time, as is sometimes done in the country," he pointed out, "the law will imply an emancipation of the son." The latter practice, giving or selling a son his time, was "certainly questionable, as to any promise in consideration of it." Yet, the courts would allow minors under such circumstances to make contracts directly for their own benefit. Clearly, the authority of fathers had its limits. If they did not live up to their obligations, then their children might become free

agents.25 The opinion in Nightingale v. Withington offered a way of understanding

children's work when fatherly obligations had broken down. Seven years later the court affirmed the notion of implied parental assent under normal circumstances. Letting sons seek their own wages, Parker wrote in 1825, was "necessary for the encouragement of young men; and it is often con- venient for a father wishing to be relieved from the burden of supporting his son." If such contracts also benefited the son, they would be upheld. So far this scenario merged nicely with notions of patriarchy in Parker's earlier opinions, but now he went a step further. "We go so far as to say," he continued, "that where a minor son makes a contract for his services on his own account, and the father knows of it and makes no objection, there is an implied assent that the son shall have his earnings." In essence, Parker unwittingly backed away from patriarchy, but he envisioned a father still firmly in control, one who knew the situation and gave his implied consent. While unintentional, Parker's opinions had started to break down the remaining barriers to full legitimation of children bargaining for their own wages.26

Implied emancipation would eventually become an established doctrine that would legitimate labor market participation by young people. But Parker had reached this point by trying to reconcile existing legal rules to labor agreements they did not precisely fit. Parker's frequent remarks about the power of fathers and the indiscretions of youth resonated with older understandings of the household, not with the companionate home of bourgeois culture. For him, the father ruled the household. His common use of the singular "parent" suggests that authority rested exclusively with fathers, even within the household. The world of women's control of domestic authority was yet to come. Children must "submit" to parental "authority" and "government," but clearly they were no longer doing so to Parker's satisfaction. Furthermore, their propensity to "seek their fortunes in the world" or to "avoid the discipline and restraint" of family governance

25. Nightingale v. Withington, 15 Mass. 272 (1818), 274-75. 26. Whiting v. Earle, 20 Mass. 201 (1825), 202.


disturbed received wisdom about young people's capacity for judgment. These acts of volition, so clearly contradictory of the legal fiction that children had no agency, obviously rattled Parker. Implied emancipation presented an elegant compromise that preserved the essential language of paternal authority and children's legal incapacity-hence the need for "emancipation"-even while it legitimated social relations that undermined these very assumptions.27

If implied emancipation envisioned minors as potential agents to contracts, the question still remained as to whether those contracts bound them. In another opinion by Parker, the court started to resolve this question by declaring that minors were not bound by their agreements and could leave at will. The question of whether labor contracts bound minors was highlighted by the court's decision in Stark v. Parker, announced in March 1824.28 Stark unequivocally declared that labor contracts between adults bound both parties to full performance, penalizing workers who quit with loss of wages. Given the general prohibitions against minors making binding contracts, Stark presented an obvious question: Were labor contracts made by children binding and hence subject to the penalties Stark prescribed? The suit of Jonathan Moses against his employer, Jonathan C. Stevens, offered the opportunity to address this question.

Jonathan Moses's story is both interesting on its own terms and important for understanding the outcome of the case. About eighteen years old at the time of the suit, Moses had neither living parents nor a legal guardian. He had occasionally worked for Stevens and for others in the neighborhood, receiving his wages directly. In early 1820, he made a three-year contract with Stevens to work until he turned twenty-one in return for room, board, and wages of one hundred or one hundred twenty dollars to be paid at the end of the term. In May 1820, he left Stevens's employ and during the winter of 1820-1821 called on Stevens for his wages. Evinc- ing a clear understanding of the developing law of contracts, Stevens told the boy he would not pay, claiming he had suffered damages by Moses's departure to the extent that he owed only for the time served. He gave the boy two dollars. Moses, also demonstrating some grasp of law, went about the neighborhood saying he had settled his claim with Stevens. For some unstated reason, perhaps because of the decision in Stark, Moses obtained counsel and took Stevens to court for a larger sum. In the course of the litigation, the lower court judge told jurors that Moses's contract, because

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

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


of his legal infancy, was voidable at his pleasure and so it could not stand as a bar to recovering what his wages were worth, as would have been the case if Jonathan had been an adult. Similarly, his breach of the agreement could not be considered a basis for damages that would reduce his reward. In other words, labor arrangements made by minors constituted a category distinct from those made by adults.29

The case presented a quandary, all the more so because of Jonathan Moses's situation. Without a parent or guardian, Moses came to court as a free agent, although legally a minor. Hence, the litigants and the court itself had to face directly the power of young people to make contracts, without regard to the rights of fathers. The justices had to consider whether children would be allowed into the capitalist world of fictive equality, promise- keeping, and binding contractual obligations. Stevens's counsel made the point directly. Moses's legal infancy, they insisted, did not make the case substantively different from Stark. "A contract made with an infant, which is made with fairness, and which is obviously for his personal benefit, ought to, and in law does, bind the infant," they contended. Knowing they were on shaky legal ground, Stevens's attorneys appealed to the potential effects of legitimating Moses's actions. The contract, besides paying wages, could provide "habits of industry and virtue which would probably be acquired from a faithful performance of it." If upheld, the action before the court would "have a pernicious effect in inducing other persons situated like the plaintiff to avoid beneficial engagements, in violation of the plainest principles of moral honesty."'30

These arguments resonated with the line of thinking used in Stark and the long line of U.S. case law that followed it. It envisioned a world of wage labor where workers entered contracts freely, but once in them, had to perform as if they were bound laborers. It also envisioned a quid pro quo of wages in return only for faithful performance. The problem for Stevens's lawyers was the legal incapacity of young people (the "privilege of infancy"), for it said children were under no obligation to perform contracts faithfully. Consequently, Stevens's attorneys sought to redefine legal infancy in a way compatible with the promise-keeping at the heart of contract-driven free labor. If a child voided a contract because of the child's "own wrongful act" without fault of the other party, the minor should not receive the arrangement's benefits, they argued. "The privilege of an infant," they contended, "is intended to guard him from imposition, and not to enable him to defeat an equitable and beneficial contract."31

29. Moses v. Stevens, 19 Mass. 332 (1824). 30. Ibid. 31. Ibid.


The court, so firm in its adherence to binding obligations for adults, was not prepared to accept such a regime for children. The privilege of infancy was an "elementary principle," Parker wrote, and certainly contracts for support or education would be enforced, especially when children had no parents or guardians. If a minor could avoid these kinds of contracts, "none will trust him, and he may be left to present want and without the means of providing a future living." That said, wage contracts, agreements for "services only," could not be considered binding. Parker's reasoning for this conclusion rested on more than the mere weight of precedent. Rather, Parker constructed childhood in such a way as to incapacitate children for labor contract bargaining altogether. A labor contract by a minor, Parker reasoned, could not be obligatory "because he is not presumed to be capable of judging the value of his services, nor of the kind of labor most suitable to him." Parker stretched the point even further, arguing for a novel position well beyond any actually taken by antebellum courts. "Even a contract of apprenticeship," he suggested, "by means of which he is to acquire a knowledge of some mechanical or other business, is not by the principles of the common law obligatory; certainly a contract by which he disposes of his personal labor without any stipulation for instruction, is less deserving of legal protection."32

Parker's opinion reveals much about emerging notions of free labor and about children's place in it. But, as with implied emancipation, his authorization of a minor's unbridled right to quit opened a new legal door. In line with his previous opinions, Parker retained his certainty that children were

children, and adults were adults. These legal categories of status could not and should not be intertwined. For him, children needed patriarchal protection, not emancipation into a labor market where they were not prepared to function as free agents. Adults could be presumed to know what their labor power was worth, to understand the "value of their services." Echoing the Puritan notion of a calling, Parker believed that adults could also be presumed to know what jobs suited their dispositions. In reality as young people entered the labor markets of industrializing New England, they had to bargain for their labor. But Parker's judicial imagination did not flow from these realities. Rather, his understanding of childhood as a period of mental incapacity led him to place children outside the core relations of a market society. Parker tried to preserve childhood as a sanctuary where young people could live without the responsibilities of adulthood, but also without its rights. Yet to preserve the privilege of infancy for a young person

32. Ibid.


such as Jonathan Moses, Parker had to authorize his participation in the labor market.33

Parker's opinions came at the end of the litigations of the Early Republic that sought to preserve parental authority and undergird a minor's legal incapacity. But ultimately these litigations created a new set of rules and legalities about children's wage work. During the 1830s, the court under Chief Justice Lemuel Shaw affirmed the rules established by Parker and his brethren, but jettisoned their backward-looking vision of parental authority and child subordination. The Shaw court saw minors as legal persons, capable of making contracts for work in their own right. The first of these litigations came in 1831 and, like several other important child labor litigations of that period, involved a whaling voyage. Robert Gray Smith, son of Pardon Smith, had embarked on a whaling ship after having been apprenticed to a blacksmith. About nineteen years old at the time of the voyage, he appears to have undertaken the venture on his own volition. The dispute centered on who had the better claim to Robert's wages. The answer lay in Robert's ability to make contracts. Following the reasoning laid out earlier, Shaw concluded that the father's assent must be assumed, even though it had not been explicitly stated. Furthermore, Robert's actions could be construed as on the cusp of adulthood. Robert had "now arrived at an age, where he was to some extent capable of acting and judging for himself," Shaw declared. "He could not be obliged to engage in the more hazardous and laborious enterprise of a whaling voyage, but by his own consent." Since Pardon Smith had not set up any claim on Robert's wages beforehand, Shaw reasoned, his consent must be implied. Unlike Parker, Shaw ventured these ideas without the concern for parental authority. Through the door Parker had unwittingly opened, Shaw strode confidently toward minors' ability to contract.34

Six years later Shaw widened even this expansive construction of minors' rights in a case more clearly about a "child" than had been the case with Robert Gray Smith. When George Corey was about thirteen, he went to live and work with his uncle John. At the beginning of this arrangement, George's father told him that "he might go, if he had a mind to, and have his earnings." George's father talked the matter of wages over with John

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

34. Manchester v. Smith, 29 Mass. 113 (1831), 115. 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), Nickerson v. Easton, 29 Mass. 107 (1831).


but never concluded a formal contract. Some dispute over wages must have occurred because by the time the boy was eighteen, he sued his uncle for wages for the previous five years. In part, John Corey's defense rested on the father's right to wages, that any money owed belonged to George's father, not the boy.35

The case gave Shaw the chance for an extended discussion of the nature of children's participation in the labor market, a discussion that ended with a forthright assertion of children's right to act as their own agents. George Corey's suit, Shaw pointed out, exemplified "the ordinary case of young men under twenty-one coming in from the country seeking employment." Shaw thus acknowledged the transformation of the New England countryside, the market revolution that pushed more and more people, adult and child, into wage work. Such "young men" might enter the labor market with explicit permission for a specific job, or it might be inferred from "a general permission to go abroad and seek employment, or to engage in a particular service." Shaw was well aware that the day of face-to-face arrangements for minors' work was coming to an end, and he had an answer for questions about the informality and anonymity of the new social relations of a market society. "The very offer of service implies, that if they have fathers, they have their consent to seek employment, but no formal evidence of this is usually produced," he observed. "The employer pays the servant. The employer afterwards is able to show, that the father had authorized the son thus to seek employment and take his wages." In other words, employers, if need be, could bargain directly with children on the implied assurance that good fathers had granted their consent. To this widening definition of parental assent, Shaw added a broadened definition of children's legal capacity. When George Corey's father gave him permission to seek employment, George "became, to a certain extent, independent, with a power to act in his own right, and then having performed services, entitling him to compensation, he had a right to recover it in his own name to his own use." This conclusion represented a long journey from the notions of parental authority intoned by earlier justices and a considerable distance from the assumptions of formal apprenticeship as well. If children as young as thirteen could make their own contracts based on the implied assent of their fathers and be considered "independent" agents in the marketplace, children's wage work had achieved a new level of legal and cultural legitimacy.36

35. Corey v. Corey, 36 Mass. 29 (1837). 36. Ibid., 30. The literature on the transformation of the countryside is immense. For ex-

amples pertaining to Massachusetts, see Christopher Clark, The Roots of Rural Capitalism: Western Massachusetts, 1780-1860 (Ithaca, N.Y.: Cornell University Press, 1990); and Daniel Vickers, Farmers and Fishermen: Two Centuries of Work in Essex County, Massachusetts, 1630-1850 (Chapel Hill: University of North Carolina Press, 1994).


If children could make contracts for themselves and those agreements would be considered binding on employers for wages, it would seem to follow that such contracts would be binding on minors as to performance. This matter the court had seemingly dispensed with in Moses, but the judgment was not generally approved, to say the least. Indeed, though the rule in Moses was eventually adopted in most jurisdictions, a series of cases in New Hampshire and New York had brought the notion of children's ability to avoid labor contracts back into question. The Massachusetts court hence returned to the question of voidability in 1837 in Vent v. Osgood. Once again the dispute involved service on a whaling ship, this time by fourteen-year-old John H. Vent, who sailed in June 1833 on the Samuel Wright with the consent of his mother. The boy jumped ship in Talcahuana, Mexico, somehow got home, and sued for his wages.37

Acknowledging that infants' contracts presented "a question of very difficult solution," Justice Putnam nonetheless upheld the principle in Mo- ses, taking the opportunity to lecture the owners of the Samuel Wright on their responsibilities. Contracts such as John Vent's were voidable "at the election of the infant," Putnam wrote. "If the service were consonant with the health, taste, and enterprise of the infant, it might be very beneficial; otherwise it might be extremely prejudicial." It was the duty of contracting parties to understand the powers the courts had placed in the hands of minors. "The law allowed him the privilege or right to judge for himself in this matter," Putnam continued, "and the owners are supposed to know the law and to contract accordingly, just as if the law were written at large on the agreement." The court saw no need to look into the sufficiency of John's motives for desertion. The law allowed him to abscond at will, and the owners must have known that when they contracted. In short, Putnam declared, the owners "were to be bound; but the infant was to be at liberty to avoid the agreement."38

Putnam's opinion encapsulated more than three decades of change in Massachusetts regarding children's wage work. During that time, the court had found a solution to the conflict between labor law and the law of childhood by imagining contracts by children as having taken place after an implied emancipation or with the implied assent of parents and by allowing minors to break their contracts at will. In the process, the court further freed children to circulate in the labor market. I do not suggest that the court simply reflected developing capitalist social relations, nor that it took an instrumentalist role in serving the needs of business. Instead, I argue that existing legal rules shaped these litigations, both in terms of

37. Vent v. Osgood, 36 Mass. 572 (1837); Weeks v. Leighton, 5 N.H. 343 (1831). 38. Vent v. Osgood, 573.


the opinions of jurists and the behavior of the parties. Beyond the prom- ulgation of rules, law helped construct emerging notions of child labor by providing a language through which children's wage work outside the household could be imagined. That language envisioned young people as legal persons in a market society. Thirteen-year-old George Corey became an "independent agent." Fourteen-year-old John Vent acquired the ability to "judge for himself." Such characterizations of young people struck at the heart of older legal and cultural constructs about childhood and labor, constructs that constrained labor market participation by young people and imagined them as incapable of the acts of volition and consent that were coming to earmark "freedom" in a contract society. Judicial discourse helped remove those incapacities, but in doing so, jurists opened new questions about young people's capacity to judge the dangers of their new-found freedom.39

Industrial Accidents

By the mid-nineteenth century, Massachusetts courts had legitimated young people's participation in the labor market. With the right of young people to make contracts selling their labor firmly ensconced in Massachusetts law, litigations about apprenticeship and wage relations declined. At the same time, however, a new kind of issue came before the state's courts as more and more minors injured on the job sued their employers for damages. Once again, the courts played a critical role in shaping the nature of children's work in an industrial society. Working-class litigants and their attorneys repeatedly asked jurists to create a higher standard of care for underage workers, one that required companies to pay closer attention to the safety of their youngest laborers. When the court partially complied with this request, it initiated four decades of legal debate about children's industrial accidents. As with contracts, the central question surrounded the capacity of young people for judgment. Industrial accident litigations presented two divergent understandings of the natural capabilities and legal capacity of young people. One vision constructed children as naturally incapable and hence in need of special protection. This position aligned with both an older view of minors' incapacity that had undergirded apprentice-

39. For later cases applying these rules, see Stiles v. Granville, 60 Mass. 458 (1850); and Abbott v. Converse, 86 Mass. 530 (1862). 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.


ship and household subordination and with newer ideas about children's natural recklessness and innocence that would be crystallized in protective legislation. The other judicial understanding of children drew from contract and accident law in general and saw young people's capacity as based on circumstances and experience. In this view, only the youngest of children could be presumed to be incapable of judgment.

That the courts should even consider a special standard based on age resulted in part from emerging bourgeois conceptions of childhood, but it also originated in the nature of minor's work itself. Appellate cases from Massachusetts reveal a child labor market in which young people found work in a wide variety of settings: on farms, aboard fishing boats, in rail yards. But the majority of young workers who sought damages for injuries worked in factories, most frequently in cotton and woolen mills, in rope walks, and in leather works. In these places, they toiled in cramped shop floors surrounded by whirling gears and sharp blades. Their work areas were often noisy, slippery, and dimly lit. Such conditions alone lent themselves to frequent mishaps, but social relations as much as working conditions set the stage for injury. Because of the spread of compulsory education, young workers often entered the factories directly from years in school, possessing little or no knowledge of machines. Upon arriving, they found that the scant training they did receive came from fellow young people or simply from being told to "watch what the others do." Moreover, young people, unlike adult laborers, were subject to many demands for authority and obedience, not only from any adult on the shop floor but from older or more experienced minors as well. All of these demands when added to the work environment meant that young hands and arms, legs and feet frequently ended up in the machinery.40

As with contracts, the law of children's industrial accidents encountered categories established for workers presumed to be adults. Over the course of the antebellum period, courts had fashioned a series of rules governing the law of negligence as it applied to industrial accidents, rules that all but indemnified employers. For workers to win damages they had to prove that the accident had not been the result of their own "contributory negligence." Workers had to prove they had exercised "ordinary care," to show they had not been reckless in their own actions. Further, plaintiffs had to demonstrate that the injury had not resulted from the carelessness of another worker, a notion that became known as the "fellow-servant rule."

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 John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press, 2004), 22-29.


These concepts rested in part on the fictions of contract. Primary among these was that when laborers consented to work, either in the larger sense of the wage relation itself or in the narrower sense of following a command on the shop floor, they could be presumed to have knowingly assumed the risks involved in the job. These considerations all presumed a world of adult workers, versed in the nature of factory work and, most important, possessing all the imagined free will of fully formed persons. Minors, especially young children, called these comforting notions into question when injured. Was a twelve-year-old truly capable of understanding risks and exercising ordinary care?41

The Massachusetts courts first considered the matter of an injured underage worker in 1851 and concluded that age had no place in the law of industrial accidents. Benjamin King, age seventeen, had been injured while working for the Boston and Worcester Railroad Company on its Brookline branch. His work relations evinced the evolving nature of young people's labor in the antebellum period. An "apprentice" in the road's machine shop, he worked "with his father's consent." His employers clearly envisioned him as something less than a master in training, having reassigned him to be a fireman, his task at the time a faulty switching device caused his injuries. For Justice Fletcher, King's case presented few difficulties; King was simply a worker, not a child worker. "The fact that the plaintiff is a minor," Fletcher declared, "does not at all affect his legal rights." Because Benjamin entered the company's employ with his father's consent, he was "lawfully in their employment." Whether Fletcher meant to imply that the lack of parental consent would presuppose a different outcome is not clear, but parental consent freed Fletcher to render King the same as any other worker. Benjamin "had the same rights against the defendants that any other person employed by them had, and no more," Fletcher maintained, "and the defendants were under the same liability to him which they were under to their other workmen, and no more." King had assumed the risks, and he must withstand the consequences.42

In some ways, King was one of the last important minor's contract litigations as much as the first children's industrial accident case. The key issue for Fletcher appears to have been the "lawfulness" of Benjamin's employment. Such reasoning aligned with the court's antebellum decisions

41. On changing conceptions of industrial accident law in the nineteenth century, see Tomlins, Law, Labor, and Ideology in the Early Republic, 301-84; and especially Witt, Ac- cidental Republic, 43-70 and passim. My analysis of accidents has also been informed by Barbara Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolu-

tion, 1865-1920 (New York: Cambridge University Press, 2002). 42. King v. Boston and Worcester Railroad Company, 63 Mass. 112 (1851), 112, 113.


that legitimated children's participation in the labor market. Fletcher's opinion also presaged the route the court would eventually take in Berdos, that the unlawful employment of children constituted negligence in and of itself. King demonstrates the distance the court had traveled from the eighteenth-century idea of childhood as a special, protected category. Having legitimated children's employment in general, Massachusetts's antebellum justices could now imagine underage workers within categories created for adults.

Whether because of King or other reasons, no industrial accident cases involving litigants identified as minors came before the Massachusetts Supreme Court for the next eighteen years. Then, in 1869, the court considered the claim of Elnathan Coombs against the New Bedford Cordage Company. The case appears to have come before the court for two reasons. First, the court had declared in Cayzer v. Taylor (1857) that employers had a duty to ensure at least a modicum of safety in the workplace.43 Second, the burgeoning growth of non-industrial accident cases involving young people had begun to raise questions about whether children could be presumed to judge danger and hence whether they were owed special protection. The justices' decision in Coombs, that under certain circumstances companies must maintain a higher standard of care for young workers, ushered in a new era in children's labor law in the state. Coombs provided the basis for over forty litigations that reached the state's highest court over the next forty years, a series of cases that peaked in the 1890s, a pivotal decade for the emerging capitalist order in the United States. The questions raised and answered in these cases created the final part in the judicial construction of child labor in Massachusetts.44

Elnathan Coombs's story was typical. In August 1866, eight months after his thirteenth birthday, Elnathan applied for work with his father's knowledge and consent at New Bedford Cordage, a ropewalk in the heart of the southeastern Massachusetts shipping industry. The overseer sent him to work with the seventeen-year-old James Davenport on a hemp-drawing machine and told James to show Elnathan how the machine worked. Ten feet long, four feet high, and three feet wide, the hemp-drawing machines

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


were "worked by two persons, and usually by boys, the work on them being considered 'boy's work."' Coombs worked out the day with Davenport and returned the next morning, only to find himself placed at a different hemp-drawing machine with different boy named Manchester. As with James Davenport, Manchester was instructed to show Elnathan how things worked. What happened next is best told with Elnathan's own words:

The machine was at work when I went to it, and Manchester was at the end where I worked. At the other end was another boy, who went off, and Man- chester took his place.... The overseer said Manchester would show me, but he didn't. He told me when the can was full to pass it away. I knew enough to fill the can when the hemp came out, and to break it off. .... Manchester told me when the can was full to break off the hemp, pass away the can and get another. I filled one can, and passed it away; and when the second can was full, and I was breaking the hemp off, my hand caught in the gearing of the other machine on the left, that I had nothing to do with..... The gearing of the other machine caught the back of my left hand, drew it in, and ground it there for a minute. Manchester halloed to a boy named Ryley, who was at the can of the machine that caught my hand. He threw off the belt, stopped the machine, ran it back, and I pulled out my hand, which was all ground up.

Elnathan's accident, as should be clear, occurred in a world of boys' work. His job, as John Davenport, a twenty-three-year veteran at the ropewalk, confirmed, was "light work, and done by a man only in the absence of a boy."45

That Elnathan's accident ended up becoming an important test case appears to have depended in part on the actions of the boy's father, Asa Coombs. A shipwright, Asa visited the ropewalk a few months after the accident and concluded that the gears that crushed Elnathan's hand could easily have been covered with a wooden box, quickly constructed in a couple of hours for a cost of less than two dollars. This common-sense argument rooted in craft-based work culture formed one central part of Coombs's case against New Bedford, and it shows how working people themselves contributed to the legal imagination of child labor. Yet Asa Coombs's idea about child safety was not an argument the court was dis- posed to entertain. Noting that the state had no statute like the English Factory Acts that required safety equipment, the justices simply dismissed Asa's request. Indeed, the question of protective equipment would remain off limits until the legislature passed the Employer's Liability Act of 1887. Nonetheless, the court recognized that Coombs's appeal presented, in the words of Justice E. R. Hoar, "an extremely interesting question, and one

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


of much practical importance, in relation to the duties and responsibilities of employers to those whom they employ."46

The "extremely interesting question" that caught Justice Hoar's attention was not simple protection from danger, but rather Elnathan's youth. The attorneys on both sides understood the importance of that question as well, and during two sessions of argument before the high court, they piled up authorities in an attempt to answer it. The company's lawyers were on firm ground. They only had to paint Elnathan within established principles of law and his case would evaporate. His work was easy to do and easy to learn, and the danger was clearly apparent, they argued. Further, if the boy had "done his work properly he would not have hurt himself." The accident was "the immediate and exclusive result of the act of the plaintiff himself doing his work awkwardly and inattentively." In other words, the boy had not exercised ordinary care. Drawing on King and a line of non-industrial personal injury cases, they affirmed that "the fact he was not of full age does not affect in any degree his legal rights or obligations."'47

While the company's attorneys could easily rely on settled law, Coombs's lawyers had to establish the case for a new rule and a new legality, a sense that children were legally entitled to greater protection than adults. They had to characterize Elnathan's injury as belonging to a special category, no simple task given the general direction the courts had taken on industrial accidents. Drawing on English and American accident law as well as the English Factory Acts, Coombs's attorneys argued directly that Elnathan's age should matter. As a "child only thirteen years old," the boy "could not be considered capable of appreciating the danger," they maintained. When the mill owners "took charge of this child, away from his natural protectors, the measure of care over him and for him was greater than would have been due from them for a person of full age," they concluded. In short, they challenged the court to understand Elnathan Coombs not as a free agent in a world of contract but as a weaker party in need of protection. Like a master, employers stood in loco parentis, charged with the duties of protection adhering to a child's natural guardian.48

The justices realized the importance of the question presented by the case, and the lengthy opinions delivered by Justice Hoar on the first argument of the case and by Justice Horace Gray on the second delved into

46. Ibid., 583. 47. Ibid. For the other personal injury cases, see Holly v. Boston Gas Light Company, 8

Gray 123 (1857). Wright v. Malden & Melrose Railroad Company, 4 Allen 283. Callahan v. Bean, 91 Mass. 401 (1864). On personal injury generally, see Welke, Recasting American Liberty.

48. Coombs v. New Bedford Cordage Company, 582


the central contradictions between childhood and free labor. Hoar firmly defended the received wisdom that if Elnathan Coombs had been an adult he could be presumed to have assumed the risks of his employment, and therefore, the mill would not be negligent. Nonetheless, if inexperience or lack of instruction had caused Coombs's injuries, the mill would be liable. Gray's opinion was even more straightforward. In the hearing of the case in the lower courts, Justice Wells had allowed recovery based on the boy's "youth, inexperience, and want of capacity" and the fact that these deficiencies might render him "manifestly incapable of understanding and appreciating the danger." This standard the court accepted, as Gray noted the circumstances of the case. Elnathan was less than fourteen, had been at work only a day when injured, and had never performed such work before. Clearly, his age combined with his inexperience required a higher standard of care.49

The decision in Coombs might appear to be a simple technical qualifica- tion of the law of negligence, but it opened the door to a further consideration of the natural and legal capacities of young people. Significantly, the court had not accepted the whole of Coombs's argument. They did not say that age alone caused Elnathan's want of capacity. Still, the court's authorization of a special standard of care provided a basis for injured child workers to get around the tightening standards for compensation being imposed on adults. In essence, the decision allowed litigants to argue over what constituted childhood. What age was so young that a worker could be considered "manifestly incapable of understanding"? Was the lack of comprehension a natural function of child development, as the court would eventually argue in Berdos, or was it simply a product of varied life experi- ences? What precisely constituted a deficiency of knowledge to the point that a child worker could not perceive danger? Finally, when had employers discharged their special responsibilities in cases such as Coombs's? Answering these questions depended on how the law understood children and child development. Did children have wills that, while needing to be broken, guided their decision making, or was childhood a special stage of life during which young people could not be expected to act and react as adults would?50

In the four decades between Coombs and Berdos, the court repeatedly investigated the capacities of child workers, examining both age and experience. In 1876, the justices authorized the suit of John O'Connor, age

49. Ibid., 592. 50. For a brief synopsis of nineteenth-century ideas about children and their capacities,

see Carl N. Degler, At Odds: Women and the Family in America from the Revolution to the Present (New York: Oxford University Press, 1980), 66-69, 86-110.


twenty, because, as an Irish immigrant who had never worked anywhere but on the farm, he lacked the experience necessary to see the dangers of the

sugar centrifuge that had ripped off his arm. In contrast, Stephen Curran, age fourteen, lost his case due to his employment of two and one-half years before the accident that injured his hand. In line with rules in non-industrial accident cases, such decisions rejected the notion that young people were naturally incapable of judgment. Instead, they proffered a vision of childhood where, after a certain very young age, young people acquired at least a modicum of ability to discern cause and effect.51

The climax of children's industrial accident litigations in Massachusetts occurred during the 1890s. In this period, the court moved further and further away from the protectionist notions embedded in Coombs, following instead the experiential elements of the decision. The clearest and most important statement of this understanding of children's capacity occurred in Ciriack v. Merchants' Woolen Company, an appeal heard first in 1888 and again in 1890. Charles Ciriack's work as a twelve-year-old hand in a woolen mill proceeded like other boys his age. Hired directly after leav- ing school, he was trained by other boys on the floor. He worked with his brother, several other boys, and a number of men in a dim room crowded with machines, some as close as eighteen inches apart. Yet his mangled hand came as much from the social relations of the shop floor as from the machinery. The overseer had ordered him always to clear up scattered pieces of "lace leather" lying on the floor. With that directive running through his head, he saw a scrap lying about. As Charles stooped to pick it up, the overseer also commanded him to scurry after a lost punch. Simul- taneously, Charles's brother demanded help on his machine. As Charles tried to obey all directives at once, crawling around on the floor in search of the lost punch, his jacket sleeve found the gears.52

Seeing his eight thousand dollar settlement overturned by the state supreme court in 1888, Charles eventually received five thousand dollars compensation on the second hearing of the case. The court allowed the second verdict to stand because of the boy's "less than average intelligence" and because of his "duty to obey" the overseer's commands to find the punch, which took him to a place he had never been before. Yet the significance of Ciriack came from Justice Knowlton's discussion of how people come to know danger. Some dangers are obvious to everyone, Knowlton pointed out, and companies could rely on this fact. When hiring a twelve-year-old

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

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


of average intelligence, "an employer is not called upon to tell him that, if he holds his hand in the fire, it will be burned, or strikes it with a sharp instrument it will be cut, or thrusts it between the teeth of revolving cog- wheels in the gearing of a mill, it will be crushed." For Knowlton, grasp- ing cause and effect in this manner arose from environmental learning, a process that started at birth. "From infancy through childhood, as well as in later life, we are all making observations and experiments with material substances," he noted, "and every person of ordinary faculties acquires knowledge at an early age of those familiar facts which force themselves on our attention through our senses." For Knowlton children were not in- nocent and unaware; nor did he recognize stages of development. Children could be presumed to act in ways similar to adults.53

The ideas proffered in Ciriack led in more than one direction. While they affirmed the general capacity of "average' children, they also allowed for natural mental disability. Hence, seventeen-year-old Theresa F. Connors could recover for her injuries at a leather works by arguing that she was mentally incompetent. To prove that she was dull and not feigning igno- rance as the company contended, Connors called upon her former teachers. Elizabeth M. Wood said Theresa "ranked very low in comparison with other girls." Catherine Lynch was more to the point. While Theresa was "very faithful and conscientious," her work was "almost a total failure." She was "extremely dull" and "her intelligence as compared with other girls of the same age, was far below average." Like the courtroom confessionals about railroad accidents investigated by Barbara Welke, Connors's claim rested on performance. For Theresa to achieve the limited power of winning her case, she had to submit to a public demonstration of her own weakness. While valuable to the litigants who won awards, such performances shored up the idea that incapacity adhered only to "below average" children.54

While young workers such as Theresa Connors might effectively demonstrate their need for extra care, the court generally adhered to the notion that "normal" children could and should be expected to make judgments. This outlook had been articulated most clearly in street accident cases, particularly in Collins v. South Boston Railroad (1886). There, Justice Field, invoking the game of chicken, acknowledged that a "spirit of recklessness or of mischief' might be found in all children, but he also pointed toward young people's "capacity of self-control, and their intelligence and ability to understand.., danger." Hence, children could be expected to exercise a reasonable amount of care for their age and experience, a question to be

53. 151 Mass. 156-57. 54. Connors v. Grilley, 155 Mass. 575 (1892); Welke, Recasting American Liberty, 235-46.

See also LaPlante v. Warren Cotton Mills, 165 Mass. 487 (1896).


determined as a matter of fact by juries. "It would seem that, if children un- reasonably, intelligently, and intentionally run into danger," Field declared, "they should take the risks, and that children, as well as adults, should use the prudence and discretion which persons of their years ordinarily have, and that they cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be careless, because children are often reckless and mischievous."55

Views such as Field's aligned not only with contemporary accident law but with the long development of law regarding children's work, for it had lent more and more credence to the idea that children possessed capacities usually reserved for adults. As long as this line of thinking held, the doctrine of assumption of risk could easily be applied to young people in industrial accident cases. As a result, the standard of special care in Coombs became more and more limited as the nineteenth century closed. George O'Connor's case demonstrates this point. The circumstances of O'Connor's injury were almost identical to Elnathan Coombs's. George had attended school until age fifteen. Indeed, he was "studious and stood well in his class," and he had never worked in a factory or on any kind of machine before setting foot in Matthew Whittall's woolen mill on July 15, 1895. Trained by other boys, he received his injury just a few days after beginning work. In a brief opinion, the court dismissed his case, noting that as a "bright boy" he should have known the risks. "It must have been apparent even to a boy of his limited experience," Justice Marcus Morton wrote, "that it would be dangerous to get his hand caught in the teeth of the roller, and that that was liable to happen if he got his hand too near it." Following this kind of logic, the court in the 1890s frequently held young workers to the same rules about due care, fellow servants, and contributory negligence used to indemnify companies against adult workers.56

Although the standard of extraordinary care announced in Coombs had been weakened considerably, the language of protection embedded in the opinion was not dead. Legal change outside Massachusetts set the stage for the return of protection in the court's 1911 Berdos decision. To support statutory prohibition of child labor, reformers increasingly relied on ideas about the natural incapacity of young people. But debate about children's abilities had remained lively in the courts as well. Questions about age, capacity, and experience informed hundreds of litigations about children's

55. Collins v. South Boston Railroad, 142 Mass. 301 (1886), 315. 56. O'Connor v. Whittall, 169 Mass. 563 (1897), 568. On juries and limitations generally,

see Cheney v. Middlesex Company, 161 Mass. 296 (1894); Hanson v. Ludlow Manufactur- ing Company, 162 Mass. 187 (1894); Armstrong v. Forg, 162 Mass. 544 (1895). For an example of direct reliance on Ciriack to limit recovery, see Gaudet v. Stansfield, 182 Mass. 451 (1903), 454.


industrial accidents across the United States in the late nineteenth and early twentieth centuries. Language forged in these litigations became a primary basis for interpreting progressive era child labor statutes in Massachusetts and throughout the nation. Working children and their families employed notions about extraordinary care to seek compensation and to engage in larger struggles for power with employers. Their ability to do so depended in large part on the creation of a language, a legal language, in which to cast their claims about children and their work.57

By the time Elias Berdos brought his claim to the Massachusetts Su- preme Court in 1911, then, legal development outside the state virtually ensured that the court would revive the idea of children's natural incapacity and hence uphold the need for protection. Although Arthur Prentice Rugg's opinion acknowledged previous judicial pronouncements about learning through experience, it was redolent with the language of protection and natural incapacity. Child labor statutes were necessary for "the protection of childhood, ... a subject of universal interest fundamentally vital in its broader bearings to the future of mankind." Children were "a class who are least able to protect themselves by appreciating and avoiding danger, or to request instructions as to matters beyond their understanding, or to arrange by contract for their protection, or to resist any compulsion arising from their own necessities or other circumstances." In short, a thirteen- year-old boy such as Elias Berdos was a "child" of "tender years" who was thereby "so restless, heedless and active as to be naturally incapable of appreciating the dangers of the position in which he was placed."58

Berdos v. Tremont and Suffolk Mills closed the long debate about children's industrial accidents that began in 1869 when the court issued its opinion in Coombs v. New Bedford Cordage. In those forty years, the court had explored the limits of children's legal and natural capacity in an industrial world. Doctrines fashioned for adults and based on assumptions of full legal personhood had increasingly been applied to young people. As Justice Field had put it, children, too, could possess at least some degree of "prudence and foresight" and could exercise "self-control." Qualities that once adhered only to masters, fathers, and other figures of household authority, could now be found in children as well. At the same time, however, assumptions about young people's natural fecklessness and inability to perceive danger persisted. Working families and their attorneys preserved

57. A 1905 case, Rudberg v. Bowden Felting Company, 188 Mass. 365 (1905) 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).

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


these ideas and presented them to the court several times annually. They kept alive the proposition advanced in Coombs that employers incurred a special responsibility for the safety of children when they took them away from their "natural protectors." Working children asked for protection while at work. Instead, the state legislature and Justice Rugg gave them protection from wage work itself by re-inventing the legal grounds for children's natural incapacity. Rugg's call for "the protection of childhood," while influenced by progressive era reform language, did not simply reflect the rhetoric of his day. Rather, it rested on tenets advanced in Coombs and examined repeatedly in forty years of litigation on children's industrial accidents. In the long view, it revived the legal underpinnings of apprenticeship, for it envisioned young people as naturally unable to discern their best interests and act as their own agents.

On a broader level, the Berdos case completed more than a century of judicial discourse about the legal and social place of children in a market society. Rugg's opinion and the legislation it upheld represented a reaction to a century of judicial change that had slowly broadened the legal capacity of young people in the labor market. This process began when Massachu- setts's Federalist-era judges shored up crumbling structures of household governance by retaining strict definitions of apprenticeship. These early nineteenth-century decisions ensured that apprenticeship would not evolve with the market economy. As a result, they hastened the split between work and education that has become one of the hallmarks of modern childhood and youth. As young people continued to join the labor market outside of apprenticeship, jurists helped legitimate their participation by fashioning paths around the legal and cultural assumptions of paternal rights and authority. Most important, the doctrines of implied emancipation and voidable labor contracts granted young people new abilities of will and consent. In the latter half of the century, industrial accident law expanded the legalities of child labor by endowing children with new powers of judgment and discernment, but it also contained the seeds of protectionist language that would end the era of child labor in the progressive period.

Nineteenth-century child labor, then, was not solely a social and economic development brought on by the market revolution and ended by legal, technological, and cultural change. When viewed from the courts instead of the legislatures, the history of child labor and the law looks quite different. It is not the story of an unbroken march from a free market toward protective state intervention. Instead, like all relations in a contract-based society, legal rules legitimated some social relations and discouraged others, and thereby constructed the "free market." More broadly, the legalities of child labor arose from judicial language that designated the capacities and incapacities of young people. In doing so, the courts drew upon but did


not simply reflect modernizing notions of childhood. "Child labor" from the outset was inherently ambiguous, for the law of childhood and the law of labor drew on competing sets of fictions. One set camouflaged subordination and dependence in adult wage work; the other cloaked agency and independence in the lives of young people. Consequently, judicial pronouncements about children's work explored the salient differences between "children" and "adults." By raising and answering such questions, the law shaped the conditions and meaning of children's work and of childhood itself.

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