whose formulation all three have coöperated, rapid progress has recently been made in the prevention of accidents and equally gratifying improvement has been made in the methods of compensating for accidents.

Employers' Liability. Under the common law of employers' liability, the employer is under obligation to provide his workmen with a reasonably safe place in which to work, with reasonably safe machinery, and with reasonably prudent and competent fellow workmen; and the employer is liable in damages for any accident to his workmen resulting from failure to display this ordinary prudence and care, as well as from the similar failure or negligence of any superintendent, overseer, or vice-principal authorized to issue orders in his name. When the employer has observed the ordinary precautions of a reasonably prudent man, however, the employee assumes all the hazards incident to the employment or arising from the negligence of fellow servants; and even though the employer is negligent, the employee cannot recover damages for an accident, if the employee was aware of the employer's negligence and voluntarily accepted the risk, or if the employee has been guilty of additional or contributory negligence.

This, in bare outline, is the common-law foundation of the doctrine of employers' liability. It has been modified incessantly by statute law and by changing interpretation of the courts; it is vague, uncertain, and legalistic in the worst sense. Under it not more than ten per cent of the victims of industrial accidents received any compensation, and of the damages paid by employers the victims received on the average probably less than 50 per cent. The rest went for court costs and lawyers' fees. A class of professional accident attorneys, "ambulance chasers," who exploited industrial accidents for their own rather than the victims' benefit, appeared in most industrial centers; ignorant juries decided on the difficult facts in the most capricious ways, now refusing relief in deserving cases, again voting excessive damages for trivial or perhaps simulated injuries; the cases filled the courts; decisions turned upon hair-splitting distinctions and metaphysical niceties; the humane employer,

the conscientious lawyer, the far-sighted judge, workingmen, and the general public became, it is hardly too much to say, disgusted with the inapplicability and bungling unsuitability of the doctrine of employers' liability properly to deal with the grave social problem arising from industrial accidents.

Attempts to solve this problem, as stated above, first took the form of incessant amendment of the old law. The fellowservant doctrine (that the employer was not responsible for accidents arising from the negligence of co-employees as distinguished from vice-principals) was curtailed in some states by confining "fellow servants" to those employed in coördinate occupations immediately associated with the victim, and the employer's defenses of "assumption of risk " and " contributory negligence" were limited and in some jurisdictions almost abolished. But the truth is that the whole social philosophy underlying the law of employers' liability was mistaken, "not so much unjust as wholly inapplicable." It misconceived the nature of the social problem involved and offered remedies that were wholly ineffectual. It attempted so far as one can discover behind it any real rational philosophy — to single out those accidents for which the employer was to blame and to compensate workmen in accordance with the damage resulting from the employer's negligence. Investigation shows, however, that the employer is responsible for only a minority of the accidents which occur. The victim himself, his fellow workers, and, most important of all, the occupational risk itself are responsible for the great majority of accidents. But the victim's need and that of his family are just as great when the accident results from the victim's negligence as when it results from the employer's negligence. It is not a question of individual fault and punishment for that fault; it is a question of industrial or social loss and insurance against that loss. The government should of course compel both employers and employees to take every reasonable precaution against accident, by unequivocal law or administrative order; and every infraction of the law should lead to criminal indictment, not civil action. But even if this were accomplished, there would still remain a large

number of industrial accidents which if not compensated for would lead to poverty, unemployment, and the suffering of innocent women and children.

That the burden of industrial accidents should be borne by the industry itself or the consumer and not by the laborer or his family is very generally recognized; and most foreign countries, together with the federal government and more than half of the states, have replaced or supplemented the old law of employers' liability with workmen's compensation acts. The laws are described and discussed in a later chapter, on Insurance. They have worked well: not perfectly, but with much more certainty and with far less cost than the old laws. Defects naturally exist in the new system which should be remedied in the future. The usual compensation is too low to indemnify the victim and his family adequately for the loss resulting from the accident, and the limitation of payments for permanent disability to four or six years or less is illogical and will cause hardship. But the new system is so much superior to the old that, despite these defects, its adoption must be regarded as a noteworthy step in social progress achieved through legislation. As a concrete contrast with the awkward, expensive, capricious working of the old liability law, the results of the operation of the Wisconsin compensation act during the year ended June 30, 1915, are suggestive of the improvement effected by the change. Of all the industrial accidents occurring that year, 93 per cent were settled between the employers and workmen with no outside interference beyond a simple "approval" by the state Industrial Commission; 3 per cent of the cases were carried to the industrial commission for adjustment; and only one fifth of 1 per cent was carried to the courts. The injured workmen received for indemnity and medical expense $1,350,000, while the administrative cost to the state was only $13,771.

Philosophy of Labor Legislation. In the preceding sketch it has been possible only in the most superficial way to call attention to a few of the more important modern labor laws. It is equally impossible to discuss adequately the general aspects

of the labor movement as it expresses itself in legislative action. In conclusion, however, it may be suggestive in a rather dogmatic way to pass in review some of the broader aspects of this movement:

Mercantilism and its alleged failure, or the breakdown of old labor legislation in the seventeenth and eighteenth centuries, furnish no adequate reason for concluding that the new legislation will fail. The old laws were enacted by a ruling minority in behalf of that minority. They had to contend with the persistent and growing opposition of a large majority of the people. They lay athwart the path of democracy.

The new laws have

much greater chance of success because they cannot be passed until they have the support of a majority, and we may now reasonably look for an administration thoroughly in sympathy with their purposes.

Administratively, an improved mechanism has been developed in the industrial, labor, or welfare commission. From the standpoint of labor legislation the tripartite division of American government has been deeply unfortunate. Legislatures have enacted laws, courts have passed upon them, and executives have administered them who did not understand the conditions and technical facts with which they dealt. More legislative power and more judicial power must be lodged in labor commissions, manned by real experts (whom we are just beginning to train) and empowered to deal with complex labor problems by administrative orders or, more properly perhaps, legislative and executive orders. The original formulation of general social policy must be left to the legislature; ultimate constitutional and judicial questions must remain with the courts; but all special questions, legislative, judicial, and administrative, should be left as fully as possible to a body supplied with means and time to learn the technical facts and to enlist both employers and employees in formulating and then observing the details of the law.

So far as constitutional questions are concerned, the main battle in the courts has, we believe, been won. Individualism and freedom of contract have constituted in the past a chronic

American disease; but an adequate antitoxin has been developed in the police power. The doctrine of the police power raises essentially a question of fact: does the condition in question genuinely menace the health or morals or safety of the community? Because this is primarily a question of fact, it is vitally important that we should have commissions or officials empowered to get the facts in an impartial and authoritative way. When we have the facts we shall recognize fully that “liberty” is a composite and mutually contradictory term; that there are liberties rather than one single liberty; that to preserve a deeper and more genuine liberty we must frequently sacrifice liberties of a smaller and more superficial character, and to preserve the liberty of the many it is sometimes necessary to restrain the liberty of the few. If there is an inalienable right of free contract, may an individual in the exercise of that right bind himself to slavery for life?

Finally it is being found that this protective legislation protective against poverty and exploitation either by persons or circumstances (the last is far the more important) — does not pauperize or weaken human fiber, or check the competitive struggle for existence upon which so much is believed to depend. Underfeeding, undereducation, underthinking, all the handto-mouth vicissitudes that accompany abject poverty, undermine human fiber and pauperize far more effectually than state regulation or assistance can ever do. Moreover, the modern labor law is the antithesis of paternalism. It is the collective way by which the wage-earning masses help themselves; and it is political because the evil which it seeks to remedy is political as well as individual. “Of all national resources labor is by far the most important. So important is it that one may almost say that all else depends upon it. Not until a nation has secured a body of sturdy, skillful and contented workers can it be said to have met the first requisite to national efficiency. . . . As in the past the nation that would succeed had to apply itself to the training of its soldiers, so now it must apply itself to the training of its industrial workers. We are appalled at the suffering, loss of life, and destruction of wealth entailed