of a torrent of arguments from the commentators, stood firm in applying the old doctrine that there was no liability unless the master was in fault and unless the workman proved it. Mons. Esmein in two admirable notes to the cases in S. 1897, 1.17 and S. 1898, 1.65, sums up the rules adhered to by the Cour de Cassation, thus:

"Faute du patron, responsabilité du patron.

"Faute de l'ouvrier, pas de responsabilité du patron. "Accident anonyme, i. e. si l'ouvrier ne peut prouver "aucune faute définie du patron,-pas de responsabilité "du patron."

The furthest point they reached, was in the case already cited where they held the employer liable as for fault where the workman conld point to a definite vice de construction of a machine as the cause of the accident. The argument that the responsability for the fault of a thing under a man's charge

sous

sa garde applies to a machine used in carrying on a work, would be more specious if any support could be found for it in the old law. Unfortunately this is not the case.

Attentive reading of the articles of the Code, in the light of such writers as Bourjon, (liv. 6, tit. 3, chs. 6 and 7) and Domat, (liv. 2, tit. 8, ss. 2 and 3) makes any such contention very difficult. A ground of obligation so vastly important could hardly have escaped the notice of Pothier. Yet there is nothing in his work to lend any countenance to it. Moreover, there is absolutely no ground to suppose that the codifiers meant to introduce any new law. Mons. Esmein argues, and his argument convinces me, that the old law never contemplated a man being held liable for a pure accident. Liability in the case of the vicious animal or the ruinous building is natural enough. The owner of an animal can restrain it, or if this is

impossible, he can kill it. He has no right to allow it to cause danger or damage to his neighbour. As to the house the owner has himself to blame if it falls from want of repairs. Defect of construction is more difficult, but even here the owner of a house has generally some warning, and some opportunity of preven ting the house tumbling about his own and his neighbour's ears. At most these are exceptional cases founded on ancient practice, and on the Roman law. It is surely a rather violent use of analogy to apply the same rule to an employer's liability for a machine, carefully bought, and carefully tended, which suddenly bursts from a defect which no vigilance could have prevented. In one year in Germany 6,931

accidents to workmen occurred from causes which were inevitable. Is it reasonable to extend to them the principle applied by the Code to the rare case of the ruinous house?

After years of discussion the best authorities in France remained unconvinced that the Code could stand the strain to which it was being subjected and public opinion was satisfied that it was safer and better to proceed by way of legislation. The history of the new law and the numerous vicissitudes through which it passed in its various stages, are given briefly, but clearly, in Sirey, Lois Annotées, 1899, (pp. 761, seq.) Of the actual working of the old law in France. I cannot speak from experience. Judging from the literature it seems to have been bad enough. Expensive and uncertain, it was a night-mare to the employer, without being, by any means, a sure protection to the workman. As regards the English system I can speak from some years of observation. It always seemed to me to combine, in a marvellous degree, the maximum of cost with the minimum of gain to anyone except the lawyers. Their interest is, of course, important, but

it is hardly the primary interest to consider. Now, in England, the employer was not spared. Whether he won or lost, he had heavy costs to pay. His recourse against the plaintiff when he won was, naturally, worthless. As the Scotch proverb says: "You cannot take the breeks from a Highlander" and you cannot get £2000 of costs from a poor workman. Very often an employer, knowing this, compromised a threatened action, though he believed he had a good legal defence. In other cases employers who were insured against claims were compelled for the sake of preserving their recourse against the insurance company to dispute claims which they would otherwise have admitted to be just.

On the other hand, the workman had to face a long and uncertain litigatiou and in the very numerous cases where there was some fault on his part he was not entitled to recover. Even when he succeeded in breaking down every defence he often found that a large part of the damages recovered went into the pocket of his lawyer as extrajudicial expenses. In recovering a sum of perhaps £300 an expense of from £1,000 to £2,000 was often incurred. The employer has to pay - let us say-£2,300, the workman perhaps gets £200, and £2,100 is swallowed up in lawyers' fees, and other expenses. Such a system of remedy in accidentcases was, I really think, hardly worth transplanting to the American Continent, and that a country like the United States, where democracy is said to be triumphant, should remain contented with it altogether baffles my comprehension.

New English Act.

I now proceed to consider the new legislation. The new Act in England came into operation on 1st July,

1898. It is cited as the Workmen's Compensation Act, 1897 (60 and 61 Vict. c. 37.) Though passed on the 6th August, 1897, its commencement was postponed until the 1st July following, in order to give time to .employers to effect insurances, and make such other arrangements as might seem necessary.

1. The act is not universal. It is limited to certain trades. It applies to railwaymen, factory hands, miners, quarrymen, men employed in "engineering work" and, with some limitations, to men employed in building operations. "Factory," however, is a wide word; it means any premises where for the purpose of gain a manufacturing process is carried on with the assistance of steam, water, or other mechanical power, and in addition, eighteen specified kinds of works, whether mechanical power is used or not. It is estimated that the Act applies to between six and seven millions of workers. It leaves out sailors, agricultural labourers, domestic servants and workers in many small handicrafts.

2. The workman can recover if the injury was caused by an accident arising out of and in the course of the employment. He has not to prove any fault of the employer or of the plant.

But he is barred if it is proved that the injury is attributable to his own "serious and wilful misconduct." As to this, it is to be noted (a) that the onus of proving the misconduct lies on the employer. (b) that it must be misconduct, not merely negligence, and (c) that it must be wilful. I suppose a man who went on to a roof to repair it when he was in a state of intoxication, or a man who struck a match in a gunpowder factory, contrary to the rules, would be regarded as guilty of such misconduct as is here intended. But the more common case of inattention or carelessness even of a gross character

would not be sufficient. Even so, the French law is more liberal and the German law goes further than any. In France, the workman can recover unless he has intentionnellement provoqué l'accident, which would be the act of a lunatic or a suicide. The Court may diminish the damages, but cannot altogether refuse to give damages in the case when the accident is due to the faute inexcusable of the workman, (art. 20). In Germany no question of the workman's fault arises. He can always recover the full amount unless he has purposely caused the accident. (den Betriebsunfall vorsätzlich herbeigeführt, s. 5, ss. 7).

3. Contracting out is only allowed by the Workmen's Compensation Act subject to very stringent conditions.

When there is a scheme of insurance in force, which, in the opinion of the Registrar of Friendly Societies is not less favourable to the workmen than the provisions of the Act, the employer may contract with the men that the scheme so approved of shall be substituted for the Act in their case. This was inserted because many companies and large employers had benefitschemes in operation, and large funds invested. It makes the Registrar master of the situation, and secures to the workman that he cannot be deprived of the benefit of the Act unless he gets something at least as good in exchange.

4. If the employer has insured himself against his liability for accident-claims, and he afterwards becomes bankrupt, the workman has a first charge upon the sum payable by the insurers. This is a very important protection, as it can hardly be doubted that most employers, will now need to provide against their new liabilities by insurance.

The persons entitled to compensation are work. men of all grades, including overseers and clerks, or