construction and effect of the six American Workmen's Compensation Acts which purport to apply only to hazardous occupations. But it is quite possible that the subject we have just been specially considering will soon cease to have any practical importance. It is not improbable that, a few years hence, there may be no statutes of this description in force. The present tendency is very strong to make Workmen's Compensation Acts include most manual occupations, instead of limiting their application to extra-hazardous employment. Such a limitation is found in only six of the twentyone state statutes now in force.41

Of what has heretofore been said this is the sum: The result reached in many cases under the Workmen's Compensation Acts is absolutely incongruous with the results reached under the modern common law as to various persons whose cases are not affected by these statutes. For this difference there is no satisfactory reason.

It is believed that the incongruities heretofore pointed out, resulting from the difference between the statute and the modern common law, will not be permitted to continue permanently without protest. The public are not likely to be "content for long under these contradictory systems." In the end, one or the other of the two conflicting theories is likely to prevail. There is no probability, during the present generation, of a repeal of the Workmen's Compensation Acts. Indeed, the tendency is now in the direction of extension, rather than repeal, of this species of legislation. The only present available method to remove the inconsistency is by bringing about a change in the existing common law, either by legislation or by judicial decisions.

As to legislation (aided perhaps by constitutional amendments); there may be an attempt to bring about State Insurance, not confined to harm suffered by hired laborers. It may extend to an "outsider," who suffers harm from the non-culpable conduct of

41 As to the Nebraska act, see ante, note II.

42 "Legislation of this character is in its infancy. . . ." Smith, J., in Cunningham v. Northwestern Improvement Co., 1911, 44 Mont. 180, 211.

See Holmes, Common Law, 96.

persons carrying on a business in which he is not a participant.44 It may not be confined to the case where there is, in the chain of antecedents, the non-culpable conduct of some human being other than the damaged person himself. It may include the case of an independent workman, who is hurt by pure accident, without any human agency other than his own, while conducting his own business on his own account; e. g. a small farmer, or a blacksmith who runs his forge without an assistant.45

A State Insurance Law may not merely insure against accident, but also against disease, either contracted in the service of another or while the claimant was working on his own account.

It may include damage wholly due to a natural cause, such as a stroke of lightning."

46

44 See illustrations ante, as to trolley car.

45 In support of Workmen's Compensation legislation stress has been laid on the justice of "making every one who consumes any product of labor for hire pay his proportionate amount of the cost of the creation representing the personal injury misfortunes of those whose hands have enabled him to secure the objects of human desire, thus minimizing the sufferings which are the natural incidents of industry and should be borne, so far as they represent pecuniary sacrifice, by the mass of mankind whose desires are administered to by such industry." See Marshall, J., in Borgnis v. Falk Co., 1911, 147 Wis. 327, 381.

But why confine relief to labor for hire, in the literal sense of that term? Why not include the farmer who is accidentally hurt while raising on his own land, exclusively by his own labor, a crop which is to be sold for consumption? Of course it might be difficult, in the absence of State Insurance, to provide a method of compensating him. He has no employer who could be made the primary paymaster. But if a general system of State Insurance is adopted, and accidental harm occurs to a farmer while engaged in the production of crops for sale and consumption, why should not relief be afforded him equally with a hired workman? And why should relief be restricted to cases where the crop is sold to an outside consumer? Why not give relief where the crop is intended to be consumed by the farmer's own family, and to thus prevent his family from becoming a public charge under the pauper laws?

The farmer's case presents two of the elements especially urged in favor of providing compensation for hired workmen, viz., he was hurt while pursuing a legitimate industry; and he was in no way culpable. He may often be better able pecuniarily to bear the loss than a workman in a factory. But in many cases an accident occasioning total physical disability would ultimately reduce him to poverty. If an accidentally injured hired workman is saved from going to the almshouse by legislation giving him a remedy against a faultless employer, why should not an accidentally injured farmer be allowed relief by, or under, a system of State Insurance?

46 The British "National Insurance Act" of Dec. 16, 1911, 1 & 2 George 5, ch. 55, bears the following title: “An Act to provide for Insurance against Loss of Health and for the Prevention and Cure of Sickness and for Insurance against Unemployment, and for Purposes incidental thereto."

Under this statute, sometimes called Lloyd-George's Act, the funds to pay insur

Whether legislation of the above descriptions ought to be enacted is a question upon which no opinion is here intimated. Our immediate point is, that the present Workmen's Compensation legislation will inevitably give rise to a plausible agitation for such further legislation.

As to a change in the common law, to be brought about by judicial decisions:

There may be an attempt to induce judges to repudiate the fundamental doctrine of the modern common law of torts that fault is generally requisite to liability, and to go back to the ancient common-law doctrine that an innocent actor must answer for harm caused by his non-culpable conduct.

Or the judges may be urged to adopt a middle or compromise view; that, as between two non-culpable actors, the loss shall be equally divided.47

Several questions arise:

1. Can the judges change the law?

2. Ought they to change the law?

3. Will they change the law?

The objection may be raised that judges cannot make, or change, law; not merely that they cannot alter statute law, a result which is admittedly beyond their power; but that they cannot make or alter law on subjects not dealt with by the legislature.

There are at least three different theories as to judicial lawmaking.48

1. That judges cannot "make" law; that they merely discover and apply law which has always existed.49

ance are derived partly from employers and employees; and partly, as we understand it, from moneys provided by Parliament. See Statutes for year 1911, p. 338, part 1, § 3.

47 "Doubtless, as the law now stands, Holmes v. Mather and Stanley v. Powell were correctly decided. But is it possible to believe that such decisions represent the last word in human justice, or that an application of some such principles as insurance or division of loss would not have been more in accordance with enlightened jurisprudence, and more satisfactory to the public conscience?"

Digest of the English Civil Law, by Edw. Jenks et als., Book 2, part 3, preface, p. xv. Compare Prof. Whittier, 15 HARV. L. REV. 335, quoted ante.

48 See 60 Univ. Pa. Law Rev., 466-467.

49 See Mr. James C. Carter's posthumously published work, “Law, Its Origin, Growth and Function."

2. (A middle view.) That judges can and do make new law on subjects not covered by previous decisions; but that judges cannot unmake old law, cannot even change an existing rule of "judgemade" law.50

3. That judges can and do make new law; and also can and do unmake old law; i. e., law previously laid down by themselves or by their judicial predecessors.51

We prefer the third view. But if the second view is adopted, the result here would not be to sustain and preserve unaltered (unless by legislation) the common law as declared by the courts in A. D. 1900; but, instead, to sustain the law as formerly declared in A. D. 1400 by the judges of that day. If judges have no power to change (i. e., if they cannot change) law "made" by their judicial predecessors, then, of course, they have not legally done that which they had no legal power to do (that which they could not do). Hence it would follow that the common law of 1400 is still in force; and that the decisions in more recent times, purporting to establish a contrary rule (i. e., the rule now known as the modern common-law doctrine), are simply instances of judicial usurpation.

But, as already intimated, we prefer the third view, that judges can and do make new law and unmake old law. Under this view the judges have heretofore changed the law of A. D. 1400 to the law of A. D. 1900, and still have now the power to change it back again. Assuming, then, that the judges can turn the hands of the legal clock back five centuries, the questions remain:

Ought they to make the change?

Will they make the change?

As to whether the change will be made: it is safe to say that, while it may take place, yet it is not likely to be done directly and avowedly. When courts change the substantive law, they generally do so very gradually, and often attempt to conceal (or perhaps unconsciously conceal) the fact of change by using various "fiction phrases." 52

50 See Prof. A. V. Dicey, in "The Relation between Law and Public Opinion in England," ch. XI, and more fully in the Appendix, pp. 481-493.

51 See Prof. John C. Gray, in "The Nature and Sources of the Law," §§ 215-231, 465-512, 545-550, 628-636.

52 See 60 Univ. Pa. Law Review, 466.

Judges, however, are not insensible to public opinion; and legislation, evidencing public opinion, has a reflex action on courts.53

Even if courts should shrink from directly and avowedly changing the law, the result could be, to a considerable extent, accomplished by indirect methods. By a very liberal construction of the res ipsa loquitur doctrine; by a broad view as to what constitutes primâ facie evidence of negligence; and by inverting the burden of proof (putting on defendant the burden of proving that he was not negligent), the court could go far towards practically reversing the common law of A. D. 1900 in a large proportion of cases.)

Whether this change ought to be made (whether it is expedient for either courts or legislatures to make it) is a problem of immense importance, which we here make no attempt to solve. At the very beginning it was said: "The object of this paper is to give notice of an impending question of great importance; not to give an answer to the question, but to show how and why it arises at the present time."

The aim has been to bring out distinctly the exact question, and to show that it must be met and cannot be evaded. How it should be answered is a matter not to be dealt with here.

At the outset, it was assumed for present purposes that the basic principle of the Workmen's Compensation Act is just; that justice to workmen requires the enactment of such a statute.

We have now attempted to show that, if justice to workmen requires such an enactment, then justice to certain persons other than workmen must also require similar legislation for their benefit; in other words, that the benefit of legislation on this basic principle cannot justly be confined to workmen.

We have also attempted to show that, if the above positions are correct, then the common law of A. D. 1900 is wrong in principle and ought to be repudiated.

But our temporary assumption - as to what justice to workmen requires will probably be disputed by many lawyers, when it is sought to push the consequences of this assumption to its logical result.

53 See Lord Hobhouse, in Smart v. Smart, L. R. [1892], Appeal Cases, 425, pp. 434, 435, 436; Hoar, J., in Amory v. Meredith, 1863, 7 Allen (Mass.) 397, p. 400; Bell, J., in Coffin v. Morrill, 1851, 22 N. H. 352, p. 357; Bell, J., in Jewell v. Warner, 1857, 35 N. H. 176, p. 183; State v. Franklin Falls Co., 1870, 49 N. H. 240, pp. 256–257.