to do himself. He can only appoint this agent as regards third persons at his own risk. Such third persons have in the existence of this rule the security of the social position and fortune of the master, and he cannot get rid of these by appointing another to act for him" (quoted by Willems, p. 145). The servant is thus treated as an agent to whom a law of agency differing from the ordinary law is to apply. Qui facit per alium facit per se is to be used in an extended manner unknown to the general law of agency. This argument excludes all questions of blame on the part of the master, and if carried to its logical conclusion would comprise all cases of delegation.

4. Dr. Willems prefers to base the liability simply on the ground of some blame on the part of the master, but he would allow the master in all cases to rebut the presumption. His argument is that it is just that the master, on whom falls the choice and oversight of his subordinates, should in case of damage done by them be presumed to have been wanting in his duty; he profits by their work, and should look after the workers. But it should be possible for the master to be able to free himself from this liability, as no one should be rendered liable for the consequences of an act to which he is a stranger, “au point de vue de la faute" (Willems, p. 147). This view is adopted by the new German Code (Art. 831), the Spanish Code (Art. 1903), and the Swiss Code (Art. 62); it is also advocated by the third section of the Belgian Commission of revision. The Dutch Code (Art. 1403), and the Italian Code (Art. 1153), both preserve the absolute liability of the Code Civil.

A word on the Swiss Code of 1881 may not be out of place here. It was proposed to enact the absolute rule of the French law, but instead the old German view of culpa in eligendo was adopted, modified by shifting the burden of proof, Articles 61 and 62 which are concerned with the subject avoid all reference to the principle.

Article 61 is as follows: "Whoever is legally bound to exercise control over a person is responsible for the injuries

committed by him in so far as he cannot show that he has observed requisite care in his surveillance, under the circumstances."

Article 62 provides that "a contractor is responsible for the injuries which his foremen or workmen have committed in the exercise of the functions for which they were employed, if he does not show that he has used all requisite care to avoid such injury. This liability falls on juristic persons if they carry on business."

A comparison of these Articles with Article 831 of the new German Code is not without interest (see page 31).

63

Part II.

CHAPTER I.

THE LIABILITY OF MASTERS FOR WRONGS OF THEIR

SERVANTS TO FELLOW-SERVANTS.

"THE workman was almost entirely forgotten in our civil code," says Dr. Emile Stocquart, and not only was this so as regards France and Belgium, but the codes of Prussia and Austria were little better off in this respect.

The invention of steam-power, the introduction of the factory system, have combined to bring about a complete revolution in the industrial world. The law has not been prepared to take cognisance of these altered circumstances, and in France, Belgium, and some other Continental countries, not to speak of England, the struggle for legislation on behalf of the workman is by no means at an end. In other States, however, the interference with the freedom of contract goes a considerable way towards establishing a socialistic régime. The limitation of hours of labour, the compulsory insurance of workmen, both against accidents and against sickness, have not only supplied what was lacking in the codes, but have gone much beyond them. The German laws have marshalled the workmen in their social life in much the same way as they are arrayed in their military. On all sides there is evidence of a feeling in favour of increasing the responsibility of the master, and of forcing him to remember that his workmen differ in important respects from the machinery which they superintend.

In England the doctrine of common employment has worked very inequitably, and we see the results of the growing conviction that more must be done by the State for the working-classes than will be done for them by the enlightened self-interest of the employers. The passing of the Factory Acts, the attempted limitation of hours of labour in shops, the Artizans' Dwelling Acts, the Employers' Liability Act, the Workmen's Compensation Act, 1897, and especially the enforcement by the local authorities, of the requirements of sanitation and water supply under the Public Health Acts, have shown that the wave of feeling on the Continent has spread also in some measure over England. We have in fact been engaged, and are for some time likely to be engaged, in the difficult task of constructive legislation, as opposed to the destructive legislation of the early Victorian era.

One of the chief causes of this movement appears to be the great increase in the number of joint-stock companies. On the Continent, as in England, one of the great features of the industrial system of the last thirty years has been the enormous growth of this system of production. Formerly, men and masters lived near to each other, and were more or less acquainted. The men's interests were to a great extent the master's, and generally where this was, and is, the case, the interest of the master is safe in his employés' hands. But this has in the main been changed. The master has disappeared, he has become dissolved into the innumerable shareholders of joint-stock companies who never associate with the receipt of their dividends any responsibility for the men by whom those dividends are earned. (a) The growth of these companies has produced a decreasing sense of personal responsibility in the employers, whilst the growth of socialistic ideas which, on the Continent, has been of increasing importance, has fixed the attention of the public on this subject in a manner which necessarily resulted in the law

(a) See Speech of Mr. A. J. Balfour at Cambridge, 10th November, 1896.

being made more favourable to the employés. The whole question has become social rather than legal, and the solution of the problem by means of insurance takes it out of the hands of the lawyers and transfers it to Government officials. This is not entirely true, as in cases not provided for by these laws, the injured workman is still to have recourse to his action under the code.

Continental legislation has in many respects abandoned the path of scientific development, and entirely new methods are in use. The examination of this legislation and of the preliminary discussion is an interesting study in the psychology of nations. This discussion has long ceased to be confined to lawyers, but it is with the legal aspect of the questions that we are concerned, though the social side cannot be ignored. Germany and Austria have dealt with the matter by legislation during the past fifteen years, and in France, Belgium, Holland, Sweden, and Norway, measures have been, or are, under discussion on this subject.

In Germany the accident insurance legislation has introduced an entirely novel principle into the law. This new conception is not the work of lawyers, but of the economists, such as Schaefle and Wagner, and it is impossible to consider the subject of employers' liability apart from the wider one of insurance, at any rate as regards Germany and Austria. It hardly need be said that there is a vast difference of opinion on the question of the direct intervention of the State in this matter. On the one hand, it is contended that only the individual interest of employer and employed ought to provide for precautions being taken to avoid accidents, and that, any such occur, the injured person should be left to his remedies under the common law. Class legislation must be avoided, says this school. On the other hand, it is urged that there are many dangers inherent to work, which can never be completely avoided. An enquiry made in 1889 by the German Reichsversicherungsamt shows that out of 15,970 serious accidents which happened in Germany in 1887, and

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