serious intention, either from the standpoint of employer or employees, of receding from the position taken in 1897; but there has been constant agitation and discussion as to liberalizing the law and enlarging its scope. There as in other countries there was a disposition to make of less importance the element of special danger and to make the principle of the law applicable to all employments. In Belgium, under the law of 1903, about nine tenths of the working population were included.

Through a Parliamentary Commission, with Sir Kenelm Digby as chairman, a very thorough and exhaustive examination of the whole subject was made; a large amount of evidence was taken; the working of the law of 1897 was carefully reviewed; and the history of similar legislation in other countries was presented.1 On the basis of the report of this commission the Workmen's Compensation Act of 1906 was passed. This law (which went into effect on July 1, 1907, 6 Edward VII, c. 58) retains the provisions of the law of 1897, which it repeals, but is applicable to 6,000,000 additional workmen, and virtually includes all workmen where the relation of master and servant exists. It had been said of the law

1 Parl. Rep. 1904, Cd. 2208; Ibid. 1905, Cd. 2269, 2334, 2458.

* See Appendix III.

of 1897 that it was imported from Germany in an unmanufactured state and inartistically made up.' The law of 1906, as well as that of Belgium and some other countries, indicates an approach towards the German scheme. This idea found expression in the memorandum attached to one of these reports: "I do not believe, however, that the principle of personal liability is one which can be effectively applied, especially in the case of small employers, unless accompanied by compulsory insurance. I am in favor of compulsion, provided insurers are offered national insurance. There is an admirable treatise upon the English act of 1906, giving the text of the law, legal decisions, with appendices containing rules of procedure, forms, regulations, official publications, etc.3

992

It is perhaps natural that the United States, and especially that state which furnished the great jurist who pronounced this doom upon English-speaking laboring men the world over, have clung with tenacity to this common-employment doctrine, although there have been many attempts from the beginning to mitigate its severity. Georgia, as early as 1856, by a few lines of legislation annulled the common

1 Ruegg, op. cit. p. 146.

'Mem. of Barnes, Cd. 2208, sup. cit. p. 131.

A. Elliott, Workmen's Compensation Act of 1906.

employment doctrine as to railroads and has legislated against both that and the contributory-negligence doctrine since.1 Recently Montana, and Colorado, have abolished the law of common employment.

2

During the interval there have been legislative as well as judicial protests in great variety: sometimes to negative what seemed to be unwarranted severity in judicial interpretations; to discriminate between the liability for the negligence of a vice-principal and other common employee; to introduce a rule of comparative negligence, analogous to that in maritime law, in place of the severe rule of contributory negligence.

It is not proposed to give here any sketch of legislation upon these points; it has been summarized recently in convenient form.'

Yet it is undoubtedly true, as has been stated by competent authority, that the position of workmen in regard to compensation for injuries is not yet so advanced as it was in England under the law of 1880, and incomparably less advanced than in Germany, and 1 Georgia Laws, 1855-56, p. 156, Appendix B; Code, 1895, secs. 2321-2323.

Laws of 1905, ch. 1.

Laws of 1901, ch. 67.

• Bulletin No. 74, January, 1908, U. S. Bureau of Labor, pp. 1-156; N. Y. Dept. of Labor, Bulletin of March, 1906, pp. 91–97; Sir K. E. Digby in Yale Law Journal, xvii, 485.

A. Shadwell, Industrial Efficiency, ii, 170; W. F. Willoughby, Workmen's Insurance, p. 328.

that the United States stands alone among the civilized nations of the world in adhering to the law of negligence as a solution of the problem of industrial accidents, while the governments of Europe and Australia have, with one or two unimportant exceptions, made the financial burden of injuries to workmen a charge upon the particular industry.'

In Massachusetts, where the common-employment doctrine seems to have developed far beyond the intention of its great author, the subject attracted much attention a generation ago, undoubtedly stimulated in some degree by the parliamentary and other discussions in England and the passage of the Act of 1880. In 1882 the legislature directed the Bureau of Labor to investigate and report its conclusions. There was a thorough investigation under Carroll D. Wright, resulting in an admirable report to the legislature of 1883, in which the situation was discussed thoroughly in all its bearings. It was recommended that a law should be enacted either like the English statute or, preferably, a very simple and brief law abolishing the defense of common employment and materially modifying that of contributory negligence. Four years later, in 1887, a law was enacted which was substantially the English act. It had been

1 N. Y. Labor Bulletin, sup. cit. pp. 7 and 95.

adopted in Alabama four years earlier.1 That legislation is still in effect practically. While in England it proved very unsatisfactory to all parties after a very brief trial, we have not materially amended it. In 1903 the subject was again up for consideration in Massachusetts and a select committee was provided for,2 to consider this among other labor questions. In its report (January, 1904) a bill was recommended patterned after the English Workman's Compensation Act of 1897. It reads like a convincing document, but apparently received scant consideration from the legislature. Again, in 1907, a recess committee made up from members of the legislature to consider labor questions was appointed, to report to the next legislature. In this report the majority of the committee' oppose any substantial legislation towards providing for compensation to workmen. They repeat, with much-diminished force, the stock arguments of a generation ago, which have become threadbare and much discredited. To these brief reference will be made later. The minority of the committee renew the recommendation of the committee of 1903 that the substance of the English law be enacted or that there be a brief 2 Res. 1903, ch. 87.

1 Civil Code, 1907, sec. 3910.

Rep. pp. 47-55.

5

• Senate Journal, p. 1165.

5 House Document, no. 1190, January, 1908.

Report, pp. 49–60.