This was the view of labor, but the view of what may be fairly called the representative of capital was not dissimilar. Mr. Asquith, a former secretary of state for home affairs and the chancellor of the exchequer in the present Government, in discussing the bill in the House of Commons, said that a large share of the burden would fall upon wages and that little benefit would accrue to workmen. To this Mr. Chamberlain replied that even admitting the correctness of the argument, "every addition to the cost of manufacture must come out of wages, which, I think, will reduce the argument to an absurdity." The colliery proprietors protested against the legislation because, they maintained, it would create a liability that would be ruinous and impose a charge of about 6 cents a ton on mining. Mr. Wilson scoffed at these fears and again asserted that the compensation would come out of the pockets of the workingmen.

No one can have read this imperfect history of factory legislation without being impressed with the fact that dangers anticipated by legislative control have never been realized, and that instead of harm having resulted from legislative interference good has followed. It is so in the case of the compensation act of 1897. Employers have not been ruined and the wages of workingmen have not been reduced because of the passage of the law. The original enactment applied to employment on railways, in factories, mines, quarries, and engineering works, and in building operations exceeding 30 feet in height. By an amendment to the act, in 1900, argicultural laborers were included in its provisions. On December 21, 1906, the Workmen's Compensation Act, 1906, was passed, under the provisions of which practically all workingmen are entitled to compensation. This act will take effect July 1, 1907.

"Whether the Compensation Acts of 1897 and 1900 have conferred substantial benefits on those classes of workingmen who are in a position to take advantage of them, we think that the general answer must be decidedly in the affirmative," is the judgment of the departmental commission already referred to. "Previous to the coming into operation of these acts," the report continues, it is no exaggeration to say that the whole burden of the loss occasioned by industrial accidents fell upon the workmen, subject to the numerous exceptions where the burden was alleviated by the generosity of the employer, either by help afforded immediately to the injured workman, or by contribution to sick or accident funds. Perhaps the substitution of a claim enforceable by law for assistance voluntarily given may in some cases be matter of regret, as interfering with very satisfactory relations between employer and employed. But, notwithstanding this consideration, it seems right and necessary to make by law systematic provisions for relief from the consequences of industrial accidents. In this way alone can some degree of uni

formity be obtained, and workers in the industries within the law of compensation and those dependent on them have reasonable security for obtaining substantial relief from the consequences of indus- · trial accident, and that, in the great majority of cases, without litigation, delay, or expense."

Hours of labor

The first "protective legislation" was placed on the statute books in 1802. The year 1906 saw the latest, most important enactment. Compare, for a moment, those two periods-the nineteenth century at its birth and the century at its close. Then the workingman, his wife, and his children were at the mercy of the master. were long, work was done in unsanitary surroundings, accidents due to criminal carelessness and greed were frequent; the moral and material welfare of the worker was no concern of the employer and a matter of supreme indifference to the State. An attempt on the part of workingmen to redress their wrongs, to obtain a higher wage, or a decrease of the working day that was destroying their souls as well as their bodies, degrading their wives, and devitalizing their offspring, was an offense against the laws and punishable as such. At present the Trade Union Acts and other acts cited give workingmen the fullest liberty of action and freedom of choice. They may work or not, as it may seem good to them; they may enter into combinations to secure an increase of wages or a decrease of hours; their actions may be frankly taken "in restraint of trade," but they face no penalties of the law. The State is jealous of its women and children, it protects them against their own ignorance and weakness and from the avarice of the employer, and, as the capstone of benevolent legislation, it gives the workman injured or killed in the line of his duty a pecuniary claim on his employer, who must compensate him according to a well-defined schedule.

"The ultimate end of factory legislation is to prescribe conditions of existence below which population shall not decline," (") was a statement made at the time when it was contended that unless little children were worked to the last remnant of their feeble strength trade would be ruined. The end sought to be attained has, in a measure, been reached.

a The Times, June 12, 1874.

BRITISH WORKMEN'S COMPENSATION ACTS.

BY LAUNCELOT PACKER, B. L.

CHANGING ATTITUDE OF PUBLIC OPINION AS TO RELATIONS OF MASTER AND SERVANT.

The attitude of public opinion in England toward the relations of master and servant, of which the latest law regulating the accidents of industry is an outcome, is shown by the current decisions of judges, by attempted legislation, and by the legislation adopted.

That this attitude has changed greatly with the times is illustrated by Parliament's expression of view in 1825, that "all combinations. of workmen are injurious to trade," while in 1875 a diametrically opposite view was held, and legislation was enacted in accordance with that view, it being then admitted by the Conservative leader, Lord Beaconsfield, that "for the first time in the history of the country employer and employed sit under equal laws." Again, in 1837 it is said that "principles of justice and good sense" require "that a workman should take on himself all the ordinary risks of his employment," while in 1897 the legislature said, "sound economic doctrine. requires that the employer shall take all the ordinary and extraordinary risks involved in the carrying on of his industry." (a)

Examination of the Workmen's Compensation Act of 1897, as amended in 1900, of the parliamentary steps by which it became law, and of its working, leads at the outset to an inquiry into judicial decisions of sixty years before, and the measures subsequently introduced into Parliament dealing with accidents which were the result of the growth and concentration of industries.

COMMON LAW OF NEGLIGENCE.

In 1837 the general principles of the common law of negligence formed the only basis of recovery by a workman from his employer for an accident. Under these general principles a man was held to be responsible to others, including his servants, for injuries resulting from his own negligent acts, or from the negligent acts of his agents in the scope of their employment.

FELLOW-SERVANT DOCTRINE.

A decision rendered by Lord Abinger in 1837 under the common law of negligence, in the case of Priestly v. Fowler (3 Mees. & W. 1,

a See lectures by A. H. Ruegg, K. C.

Murph. & H. 305), is largely responsible for subsequent attempted legislation and for legislation enacted affecting a master's responsi-' bility to his servant in case of negligence. In this decision was enunciated the doctrine "that a master could not be held responsible for an accident to his servant if such accident were caused by the negligence of a fellow-servant," this being called "the fellow-servant doctrine," or "the doctrine of common employment." This doctrine, whether rightly or wrongly expounded in this decision, has operated as a defense to actions by servants against their masters for damages for injuries resulting from the negligence of their master's agents, if such agents were fellow-servants, and has thus left the workman no redress in many cases where a stranger would have had redress.

The fellow-servant doctrine has been supported on the ground of its expediency (as preventing accumulation of alarming liability), on the ground of "its tending to prevent accidents" (by making each servant watch his fellow-servant), and on the ground of "contract" (it being held to be one of the "implied terms" of the contract of employment). On the other hand, it has been the subject of bitter attack ever since it was enunciated, the statement having been made that it was an exception to the general law of negligence, putting workmen in a worse position than strangers to their employer; that it tended to make employers less careful in the selection of their employees, and that it was founded on a legal fiction, not on a voluntary contract.

The doctrine was entirely repudiated in Scotland until imposed on that country by a House of Lords' decision in 1858 (Bartonshall Coal Company v. Reed, 3 McQ., H. L. Cas. 266). Though it remains operative to a certain extent, as modified by the Employers' Liability Act of 1880, the practical workings of the Workmen's Compensation Acts have largely counteracted its effect in the trades to which these acts apply. From allusions to it in debates in 1897 on the Workmen's Compensation Act it seems likely to be soon entirely extinguished by Parliament.

Opinions of lawyers have differed as to the soundness of the decision, some holding that it rightly interpreted the existing common law, and others that it entirely without warrant engrafted a new doctrine into the law, but it is now according to high English legal authority almost universally admitted to be not only unjust, but also based on illogical reasoning.

DOCTRINE OF ASSUMED RISK.

The doctrine of assumed risk was another defense against an employer being held liable for accident, a doctrine generally based on an "implied term" in the contract of service. It was laid down in the

case of Priestly . Fowler (supra) that a servant "assumes all the ordinary risks which are incidental to his employment." (An important corollary of this doctrine of assumed risk is the aforementioned doctrine of fellow service, namely, that one of the risks incident to the service which the workman agrees to assume is the risk from the negligence of a fellow-servant.) This implied term of his contract of service left the workman to bear the risks he knew or ought to have known, including the burden of dangers inherent in the business, such as unavoidable accidents, etc.

This doctrine has been justified on the ground that the servant is as well able to guard against the risk as his employer, and that it is calculated to secure fidelity and prudence on the servant's part; on the other hand, it has been doubted whether it has the effect claimed for it, and it has been suggested that the "dread of personal injury has always proved sufficient to bring into exercise the vigilance of the servant. Another attempt to justify the doctrine, on the ground that the amount of the workman's wages is adjusted with reference to the character of these risks, is answered by the statement that this theory is borne out only to a very limited extent by the actual facts of everyday life. (Labatt, sec. 259, etc.)

This principle was applied to the relations of master and servant in the case of Dynen . Leach (26 L. J. Exch. N. S. 221) in 1857, and also in Saxton . Hawkesworth (26 L. T. N. S. 851) in 1872, in such a manner that it was made to operate as a defense against a claim by the servant for damages for injuries resulting from “negligence actually existing" on the part of his master, on the theory that the servant had voluntarily agreed to encounter the risks from non fulfillment of his master's legal duty as to system and appliances. At the time of these early cases cited, the voluntary agreement of the servant was implied from his continuing in the service of the employer, “with knowledge of the defects," so that if the servant remained in the service, with knowledge, he was debarred thereby from maintaining any action for recovery from the master for injuries resulting from such defects.

DOCTRINE OF VOLENTI NON FIT INJURIA.

This old defense of assumed risk, enumerated as a defense peculiar to the relation of master and servant, has been thought by some authorities to be only a form of the wider and more comprehensive doctrine of "volenti non fit injuria" of the common law, which means that "one who voluntarily incurs a risk can not recover." The latter has, by other authorities, however, been stated to be different. from the doctrine of assumed risk, as the doctrine of assumed risk arises out of the contract of service between master and servant, while 304B-No. 70-07-8