SENATE 
 
 63d Congress \ 
 1st Session / 
 
 / Document 
 l No. 131 
 
 COMPULSORY 
 
 WORKMAN’S COMPENSATION LAW 
 
 ADDRESS 
 
 OF 
 
 * 
 
 HON. GEORGE SUTHERLAND 
 
 UNITED STATES SENATOR 
 FROM UTAH 
 
 TO THE 
 
 THIRD ANNUAL CONVENTION OF 
 INTERNATIONAL ASSOCIATION OF CASUALTY 
 AND SURETY UNDERWRITERS 
 CHATEAU FRONTENAC, QUEBEC, CANADA 
 
 THE ECONOMIC VALUE AND SOCIAL JUSTICE 
 OF A COMPULSORY AND EXCLUSIVE 
 WORKMEN’S COMPENSATION LAW 
 
 w 
 
 PRESENTED BY MR. CHAMBERLAIN 
 July 14, 1913. — Ordered to be printed 
 
7 Jk (4 4.M-.F 
 
 33 [. L 
 
 COMPULSORY WORKMEN’S COMPENSATION LAW. 
 
 Mr. President and Gentlemen of the Convention : 
 
 Conditions produce opinions which, when sufficiently potential, find 
 expression as law. Changed opinions naturally result from changed 
 conditions, and as conditions are never at a standstill it follows that 
 the law of one generation never quite satisfies the sentiment of the 
 generations which follow. It is the business of the lawmaker to de- 
 termine — and sometimes determine at his official peril — out of the 
 multitude of opinions that from time to time develop which of them 
 are sufficiently substantial to be given statutory expression. The 
 general demand for a wiser and juster adjustment of the burden re- 
 sulting from accidental injury sustained by workmen in their employ- 
 ment presents to the legislator one of these problems, the correct solu- 
 tion of which not only requires him to know what is demanded but 
 to understand the conditions out of which the demand arose. 
 
 Blackstone, writing 150 years ago, includes master and servant, 
 along with husband and wife, parent and child, guardian and ward, 
 in a class whose reciprocal obligations result from status rather than 
 from contract. The explanation of this classification is probably to 
 be found in the fact that prior to Blackstone’s day the servant’s du- 
 ties were generally of a domestic character, but with the vast exten- 
 sion and diversification of industry the relationship of employer and 
 employed has radically changed, until it is no longer predominatingly 
 domestic in character but has become more generally a relation apart 
 from the household. As a consequence, the contractual conception 
 of the relation of each to the other has more and more supplanted that 
 which originally flowed from the notion of status. This has been 
 strikingly manifested in the evolution of the law of liability for per- 
 sonal injury, which has resulted, until recent years, from judicial as 
 distinguished from legislative activity, and nearly every development 
 of which is rooted in the notion of contract. 
 
 The rule by which the master was held liable for an injury to the 
 servant, caused by the former’s negligence, was based upon his im- 
 plied contract to furnish safe appliances and a safe place to work, to 
 provide safe methods and to exercise reasonable care to protect the 
 latter from injury. The countervailing rule that the servant could 
 not recover where the injury resulted from observed or clearly ob- 
 servable dangerous conditions was based upon the implied under- 
 taking of the servant to assume the risk of such conditions — the fel- 
 low-servant doctrine being probably a branch of this general rule. 
 
 3 
 
4 
 
 COMPULSORY WORKMEN'S COMPENSATION LAW. 
 
 These various rules of the common law originated at a time when 
 all the circumstances of the employment were of a simple and open 
 character ; but as complicated machinery has more and more taken the 
 place of hand labor, as the powerful and indirectly applied forces of 
 steam and electricity have been substituted for the simple and direct 
 power furnished by water and horses, as the master has been more 
 and more removed from direct contact with the servant through the 
 device of corporate organization and the interposition of supervising 
 agents, as the servants of the same master — originally few in number 
 and working side by side — have grown to an army, no longer ac- 
 quainted with one another, these rules have come to be largely with- 
 out justice or justification. From time to time they have been modi- 
 fied by judicial interpretation and the invention of exceptions. In 
 recent years this process has been accelerated by legislative action. 
 Thus, because of the injustice of relieving the master from liability 
 where the negligence in question was that of a superior servant o"r 
 of one engaged in a separate and distinct class of work, the follow- 
 servant doctrine has been modified bv the introduction of the vice- 
 principal and separate-department doctrines. As it has been borne 
 in upon the consciousness of the legislator that the laborer in modern 
 industry in this day of sharp competition is not quite free to accept 
 or refuse work at his pleasure, the doctrine of assumption of risk 
 has been modified or overthrown ; and in this way the former common- 
 law defenses of the master have been abrogated or have undergone 
 radical alteration. The whole process indicates that the vice of 
 applying the common-law system to modern industrial conditions 
 arises not so much from its details as from the inapplicability of its 
 fundamental doctrines. Legislation which continues to recognize the 
 general applicability of the system and attempts by the introduction 
 of modifications and exceptions to reconcile it to the utterly different 
 conditions of our day is not a remedy but a palliative merely. 
 Thoughtful students of the subject have come to recognize that what 
 is needed is not to lop off dead or superabundant branches, but to cut 
 up the tree by the roots and substitute for the entire growth of em- 
 ployers’ liability the new system of workmen’s compensation. 
 
 We have thus swung round the circle from the ancient notion of 
 the master’s duties based upon status, through that of employer’s 
 liability based upon contract and its statutory modifications, to the 
 broader conception of the absolute right of the injured workman to 
 compensation from the enterprise in which he is employed and to 
 whose success he contributes his work for the sake of the wages as the 
 owner contributes his capital for the sake of the dividends, and we 
 are brought round again to the idea of status, only it is now the 
 status of industry and workman instead of the status of master and 
 servant. In this new conception there is consistently no place for 
 any part of the old common-law system. 
 
 Workmen’s compensation and employers’ liability proceed upon 
 wholly different, if not irreconcilable, principles. Employers’ liabil- 
 ity for personal injury is based upon negligence, against the existence 
 of which, by implication of law, the employer has contracted. Work- 
 men’s compensation is based entirely upon the relationship which the 
 injured workman bears to the employment in which he is injured. 
 While statutes have been passed depriving the employer of the 
 common-law defenses or modifying them to a more or less radical ex- 
 
COMPULSORY WORKMEN'S COMPENSATION LAW. 
 
 5 
 
 tent, under all of them the necessity of showing negligence on the 
 part of the employer remains. The inherent evils of the common- 
 law system of liability for negligence are generally conceded, among 
 the most prominent being: (1) That the enforcement of the em- 
 ployee’s rights results in great waste and in great delay. The 
 employee, being generally unable to pay any counsel fees in the event 
 of failure, is compelled to submit to the payment of exorbitant con- 
 tingent fees in the event of success. Litigation, because of the 
 crowded condition of the court dockets and for other reasons, is pro- 
 longed indefinitely. In the meantime the employee, if able to work, 
 must often live in enforced idleness because his old employer will not 
 furnish him work and others from sympathy with the employer do 
 not do so. The result is that even if a large or extravagant judgment 
 is obtained, more than half of it goes to the lawyer and for other 
 expenses, and the expenditure of the remainder is largely anticipated 
 by living expenses. (2) Upon the happening of an injury a condi- 
 tion of antagonism between employer and employee at once arises. 
 The employee, naturally desirous of securing as large a payment as 
 possible, consciously or unconsciously, exaggerates the facts tending 
 to show the employer’s negligence, and the employer upon his side 
 exaggerates the facts tending to minimize his own negligence or 
 emphasize some affirmative defense. Out of this double distortion 
 the truth does not appear. If the employee is honest enough to tell 
 the exact truth he may not recover and too often he does recover by 
 deliberate untruth or by coloring the facts with the ingenious aid of 
 counsel. Thus conscientious truth suffers and dishonesty is re- 
 warded. The measure of damages is so uncertain, so much is de- 
 pendent upon the bias or caprice of individual jurors, that verdicts 
 for similar injuries differ in amount to the widest possible extent. 
 (3) In a large proportion of the cases, particularly in death claims, 
 the recipient of the money resulting from settlement or judgment is 
 wholly inexperienced in handling considerable sums, and it is often 
 quickly frittered away or lost in unwise investment, in which case, 
 as well as where no recovery can be had at all, the unfortunate em- 
 ployee or his dependents, in case of death, become to a greater or less 
 degree a charge upon the charity of society. 
 
 In addition to this, the litigation is carried on at great public ex- 
 pense. In the United States probably one-fifth of the time of courts i 
 and juries is taken up with this class of litigation. 
 
 The foregoing may be exemplified by the following case, the facts 
 of which are not at all out of the ordinary : An engineer on a western 
 railroad was killed, leaving a widow and three young children. 
 Before the body of the dead engineer had been laid away the widow 
 was importuned by an agent of a firm of personal-injury lawyers to 
 put her case into their hands, upon an agreement to pay them 50 per 
 cent of the amount recovered. This she did, and suit was brought. 
 At the end of three years of litigation a judgment of $10,000 in her 
 favor was paid. Of this amount she received $5,000 and her lawyers 
 the other $5,000. In addition to the $10,000 the litigation had cost 
 the railroad company, as nearly as can be estimated, $2,500 more. 
 
 It had cost the State $625, taking a proportionate part of the salary 
 of the judge, the expense of maintaining the court, the fees of the 
 jurors, and so on. Thus it will be seen that in order to get $5,000 
 into the hands of the widow and children the railroad and the State 
 
6 
 
 COMPULSORY WORKMEN'S COMPENSATION LAW. 
 
 together had expended $13,125. Long before the judgment was paid 
 the widow had exhausted her financial resources and had been com- 
 pelled to do hard and unaccustomed labor in order to support her- 
 self and family. A part of the money which she received went to 
 pay debts which she had incurred. She was a woman wholly unac- 
 customed to business and unfamiliar with investing money. She 
 was surrounded by friends who knew precisely what she ought to 
 do with the money, and at the end of 18 months she found herself 
 without a dollar, the very existence of herself and children dependent 
 upon such poorly paid work as she could do and upon public or private 
 charity. And yet this widow was far more fortunate than the vast 
 majority of her sisters similarly situated, more than half of whom 
 receive no compensation whatever. 
 
 An exhaustive inquiry carried on by the Federal commission 
 
 ( appointed to investigate this subject discloses that the average amount 
 paid by the railroads in the United States to the dependents for a 
 j death claim is $1,221, from which lawyers’ fees and other expenses 
 * must also be deducted. 
 
 These are some of the evils of the system of employers’ liability. 
 How can they be most effectively and justly eliminated? It is 
 obvious that a mere alteration of the details of the common law 
 will not be of any considerable economic value. It is true that by 
 abrogating or modifying the common-law defenses the field of the 
 employee’s opportunity for successful litigation is broadened, but 
 the field of opportunity for waste is at the same time also extended. 
 It is likewise true that some employees who are not now able to 
 recover solely because a negligent employer can establish a good 
 defense will under these alterations be able to recover, but it is safe 
 to say that more than one-half of the workmen who are injured and 
 a still greater proportion of the dependents of those who are killed 
 will still be unable to recover because of their inability to establish 
 the employer’s negligence or because the accident is due to the em- 
 ployee’s sole negligence or to the ordinary risks of the employment. 
 
 Under the simple conditions which at one time existed the majority 
 of accidents which happened were due to somebody’s want of care, 
 because there were no inherent dangers in the use of manual tools and 
 simple appliances in the usual way and under the usual circumstances; 
 but in this day of complex appliances, rapidly moving machinery, and 
 the press and stress of abnormal hurry, a very large proportion of all 
 accidents are due to general conditions, for which no one is specifically 
 to blame. At a time when, if accidents happened, they were generally 
 the result of clearly ascertainable negligence, there was both wisdom 
 and justice in making negligence the controlling element in the right 
 to recover ; but now that the conditions under which the work of our 
 day is performed are such that the greatly preponderating propor- 
 tion of accidents are due to inherent dangers, or to a complex and 
 confusing set of circumstances in which negligence is either not 
 present or not traceable or exercises only a minor influence, the element 
 of negligence has ceased in fact to constitute the usual determining 
 cause of industrial accident, and there has resulted a growing opin- 
 ion that it should no longer be regarded in law as the determining 
 factor controlling the employee’s right to recover. 
 
 The German accident statistics, which have been gathered with the 
 most painstaking care, in this connection are most illuminating. 
 
COMPULSORY WORKMEN^ COMPENSATION LAW. 7 
 
 These statistics are gathered from the experience of a vast body of 
 workers, aggregating to-day many millions, and they cover many hun- 
 dreds of thousands of accidents. In the year 1887 the percentage of 
 accidents which were due to the negligence of the employer was 
 20.47 per cent; those due to the negligence of the employee, 26.56 
 per cent; due to the contributing negligence of both, 8.01 per cent; 
 and due to the inevitable risks of the industries and other causes, 
 44.96 per cent. In the year 1897, 10 years later, there was due to 
 the negligence of the employer 17.30 percent ; to the negligence of the 
 employee, 29.74 per cent; of both, 10.14 per cent; and to the inevi- 
 table risks, etc., 42.82 per cent. Ten years later, in 1907, the num- 
 ber due to the fault of the employer was 16.81 per cent ; to that of the 
 employee, 28.89 per cent; to both parties, 9.94 per cent; and to the 
 inevitable risks, etc., 44.36 per cent. 
 
 Applying these figures to our own country — and there is no reason 
 why they should not approximately apply — under the most liberal j 
 employers’ liability law which we have, recoveries may be had by 
 employees in considerably less than one-third of the accidents which 
 happen, the remainder, more than two-thirds, being due to inevitable 
 risk, the sole negligence of the employee, or other causes not involv- * 
 ing negligence on the part of the employer. 
 
 The labor bureau of Wisconsin has given the result of their inves- 
 tigation of 318 representative cases of personal injury, in which it 
 was found that 52.10 per cent were due to the hazard of the industry, 
 A rather careful examination of such statistics as we have in this 
 country convinces me that on the average approximately one-half of 
 all accidents resulting in personal injury or death are due to the 
 hazard of the industry and that not more than 25 per cent are due to 
 the sole or contributing negligence of the employer. It must be 
 apparent, therefore, that no matter how the system of employers’ 
 liability may be modified, so long as the employer’s negligence re- 
 mains as a prerequisite to recovery, either by far the greater pro- 
 portion of all injuries must go without compensation or many verdicts 
 must be based upon untruthful evidence or rendered in disregard of 
 facts. Neither alternative is to be contemplated with satisfaction. 
 
 The truth is we have been thinking in terms of negligence so long 
 that it is difficult to rid ourselves of the notion that personal fault on 
 the part of somebody is always a necessary prerequisite to a just lia- 
 bility. The subject must be approached from new angles. The great 
 industries of to-day are engaged in producing commodities or in ren- 
 dering services for the general public. The consumers of these com- 
 modities or the recipients of these services are justly obligated to pay 
 what they cost plus a fair return upon the investment. The w T ear and 
 tear of machinery, the cost of the labor employed, every item of ex- 
 pense entering into their production or rendition is properly taken 
 into consideration in arriving at the amount to be paid. The injury 
 of a workman resulting in loss of earning ability or death as truly 
 enters into the cost of production as the breaking of a piece of ma- 
 chinery, only in the latter case the industry bears the expense, no 
 matter how the loss occurs, while in the former the industry pays 
 when the owner is at fault, and the workman pays in every other case. 
 There is no reason why the industry should not bear the expense in 
 all cases, collecting it in the last analysis from the consumer just as 
 it collects every other item of expense entering into the production. 
 
8 COMPULSORY WORKMEN^ COMPENSATION LAW. 
 
 In earlier times, when few men were employed by the same em- 
 ployer and few were engaged in each occupation, the number of 
 accidents and consequently their cost could not be foreseen. From 
 the standpoint of anticipation that was wholly a matter of chance. 
 But dealing with modern conditions', where vast numbers are em- 
 ployed and a vastly extensive field is covered, we are able to predict 
 almost exactly not only how many accidents will occur in the course 
 of a year but to classify them according to the extent of their severity. 
 Thus we know that in the railroad service of the country where 
 seventeen hundred thousand men are employed, about four thousand 
 will be killed every year and about seventy-five or eighty thousand 
 will be injured to a greater or less degree. In other words, by the 
 vast extension of the field within which these accidents occur the 
 doctrine of chance has stepped out and the law of averages has 
 stepped in as the controlling rule. It is the unvarying and certain 
 operation of this law of averages upon all human activities that con- 
 stitutes the value of all our statistics ; that makes insurance a business 
 of scientific accuracy ; that in all our large affairs enables us to walk 
 sure-footedly toward the future. There is, therefore, no longer any 
 difficulty in determining what the aggregate cost to any given large 
 industry the payment of compensation will be where the schedule 
 of amounts is prescribed, and this cost can be easily and exactly 
 included in the price of the commodity or service. In the case of the 
 small industries, insurance, mutual or otherwise, gives opportunity 
 for the operation of the law of averages by bringing a sufficient num- 
 ber of employers into the same field of risk. 
 
 Whenever a workman is injured so that his ability to earn a living 
 is impaired or destroyed, somebody must bear the burden, and the 
 extent of the burden is precisely the same no matter how the accident 
 was caused. The theory of employers’ liability is to put the entire 
 burden on the employer when his causal negligence can be established 
 and to leave the entire burden on the employee in all other cases, 
 while the theory of workmen’s compensation is to equalize the burden 
 by paying the injured workman half wages, or approximately that, in 
 every case of injury, however caused, and for a period proportioned 
 to the extent of the injury. Such a rule results in average justice, 
 which the more or less haphazard enforcement of the system of neg- 
 ligence liability does not, since a majority of injuries go without 
 any compensation, while of the remainder some are fairly, some are 
 inadequately, and some are extravagantly compensated. 
 
 I have already stated that these two theories of employers’ liability 
 and workmen’s compensation proceed upon wholly different prin- 
 ciples. It follows that any attempt to ingraft one upon the other is 
 unsound. The law of workmen’s compensation, therefore, should 
 afford the sole remedy. In other words, it should be compulsory and 
 exclusive. An elective law is a legislative absurdity. Indeed, it is in 
 effect no law, since “ law is a rule of civil conduct commanding what 
 is right and prohibiting what is wrong.” The so-called elective law 
 commands nothing — prohibits nothing. It proceeds upon the notion 
 that it is right that the employer should be obliged to pay and the 
 employee should be obliged to receive definite and fixed compensation 
 for a personal injury, independently of fault, and then permits both 
 parties' to do as they please about it by allowing them to elect in 
 advance whether they will be bound by the law of compensation or 
 
COMPULSORY WORKMEN^ COMPENSATION LAW. 
 
 9 
 
 the law of liability. Indeed, where the elective form has been adopted 
 the justice and wisdom of compulsion is recognized by prescribing 
 penalties for a failure to accept it, the usual provision being that if 
 the employer elects not to be bound he shall be liable as at common 
 law stripped of all the common-law defenses and that if the employee 
 elects not to be bound he shall be entitled to the common-law remedy 
 burdened with all the common-law defenses. Such legislation has 
 been justly characterized as “ the highwayman’s law.” Ostensibly 
 it allows those who are affected to accept or decline; in fact, it 
 coerces acceptance at the muzzle of the legislative revolver. 
 
 Every consideration of justice and economy likewise demands that 
 the law should be exclusive; that is to say, it should not permit, 
 after the accident has happened, a choice of remedies on the part of 
 the employee. These considerations may be briefly stated as follows : 
 
 1. It is unjust to the employer, since its effect is to compel him 
 to respond for such unlimited and sometimes extravagant damages 
 as a jury may see fit to impose, whenever his negligence can be estab- 
 lished, and then superadds a liability to pay the definite amounts 
 prescribed by the law in all cases where he is without fault, includ- 
 ing those where the injury was due entirely to the negligence of the 
 employee. There is, to say the least, grave doubt whether such a 
 law is not so arbitrary in character that the Supreme Court of the 
 United States would declare it void as constituting a denial of due 
 process of law. The exclusive law is based upon perfectly defensible 
 considerations of mutual burden and mutual advantage. It compels 
 the employer to pay definite compensation in all cases, but relieves 
 him of the liability to respond in unlimited damages in some cases. \ 
 It deprives the employee of his right to recover unlimited damages 
 in some cases, but gives him in exchange the right to recover definite 
 compensation in all cases. The effect of it is to make the employer 
 an insurer of the safety of his employees in a fixed and limited 
 amount, but to leave in his treasury the fund theretofore available 
 for the payment of indefinite damages to assist him in meeting the 
 new obligations. It gives to the employee an insurance policy in 
 exchange for the gambler’s chance, and in effect says to him, “ You 
 may hereafter sustain an injury, which may or may not be due to 
 your employer’s negligence. You may be able to recover damages 
 or you may not be able to recover anything. This law guarantees 
 you the certainty of compensation in place of the uncertainty of 
 damages .” 
 
 2. By making the law exclusive larger compensation can be given 
 than would be possible if a choice of remedies were allowed, since it 
 is manifest that if the employers’ liability to pay unlimited damages 
 in case of negligent injuries be continued and in addition he be com- 
 pelled to pay large compensation in all other cases his industry will 
 be taxed beyond its capacity to pay. It must be frankly recognized 
 that the compensation law substitutes the communistic idea of benefit 
 for the whole class in place of the individualistic theory which per- 
 mits a minority of the class to recover much and the majority little 
 or nothing. The justification for a compulsory and exclusive work- 
 men’s compensation law rests in the conception that the workmen 
 employed in any enterprise are industrial soldiers, who being in- 
 jured in its service are entitled to be cared for to a fair and equitable 
 extent, having in view the ability of the industry to pay. Theoretic- 
 
10 COMPULSORY workmen's COMPENSATION LAW. 
 
 ally, therefore, we are to consider that we have a fund, which, how- 
 ever large, is still limited ; that this fund is to be distributed among 
 the workmen who sustain injury resulting in disability and the de- 
 pendents of those who sustain injury resulting in death; that this 
 fund is to be distributed not for the purpose of penalizing the em- 
 
 ( ployer, but for the purpose of aiding the injured, and that finally 
 it is better that everybody injured should receive compensation than 
 that only a portion of those injured should receive damages and the 
 remainder nothing. 
 
 3. The double remedy will result in a continuation of the great 
 waste which it is one purpose of the compensation law to avoid. To 
 allow an election of remedies is to permit the injured employee to 
 still remain a bone of contention between the personal-injury lawyer, 
 who urges him to sue for the sake of the contingent fee involved, 
 and the claim agent, who seeks to make inadequate settlement in 
 order to save the treasury of his company. Suits will go on as here- 
 tofore. Half of the amount recovered will be lost on its way from 
 the treasury of the company to the pockets of the employees. The 
 unfortunate feeling of antagonism between employer and emploj^ee, 
 which now results, will continue without abatement. The expense 
 to the taxpayer incident to the trial of personal-injury cases will still 
 continue. 
 
 4. To allow an election of laws or a choice of remedies destroys 
 one of the most pronounced advantages of the compensation prin- 
 ciple, namely, the element of certainty. So long as we allow the em- 
 ployee to seek damages upon the basis of the employer’s fault or the 
 employer to defend upon the basis of the employee’s negligence, 
 just so long will the uncertainty of the lav/suit counteract the cer- 
 tainty of the fixed schedule and just so long will the fund which 
 should be husbanded and utilized for the benefit of all be frittered 
 away for the benefit of some. A compulsory and exclusive law saves 
 the vast sum which is now wasted and which would continue to be 
 wasted under a composite system for distribution among those who 
 are injured. Expense will be saved to employer and employee and 
 to the public. The only individuals who will suffer will be the 
 personal-injury lawyer and his lawsuit hunting agents. 
 
 5. A compulsory and exclusive law will, in my judgment, prove a 
 powerful aid in the prevention of accidents. Under the liability 
 system the employer and the employee are interested in exaggerating 
 or concealing the real facts in so far as they tend to prove or dis- 
 prove negligence, the employer coloring and distorting them in one 
 direction and the employee coloring and distorting them in the 
 opposite direction. Between the two the precise truth as to how the 
 accident occurs is effectually concealed. When the employer knows 
 that he must pay and the employee knows that he must receive a cer- 
 tain prescribed sum wholly irrespective of the way in which the acci- 
 dent happened, neither will have any reason for misrepresentation, 
 and we shall be able to ascertain the cause of the accident, and know- 
 ing why and how it happened we shall be able to prescribe remedies 
 which will have a tendency to prevent similar accidents in the future. 
 
 After all, the vital objection to the liability system is that it does 
 not in the main permit of average justice, and this is particularly so 
 in death claims Avhere by the death of the employee quite often the 
 evidence which would have established liability is lost. The conse- 
 
COMPULSORY WORKMENS COMPENSATION LAW. 
 
 11 
 
 quences to the dependent family of an engineer who is killed as the 
 result of his own negligence are precisely the same as where there is 
 no negligence at all or where the employer is at fault. Both families 
 have lost a provider and both must be cared for. It is certainly more 
 in consonance with sound public policy to require that both families 
 shall be compensated within fair and reasonable limits than that the 
 employer should be penalized for the benefit of one family at the 
 expense of the other. 
 
 Experience is always a more valuable guide to human conduct than 
 precept. Every country in Europe except one has abandoned the 
 theory of employers’ liability based upon fault and substituted that 
 of compensation for accidental injury based upon status alone. 
 These laws have been in operation in some of these countries for 
 many years — in England for IT years, in Germany for more than a 
 quarter of a century. If they did not on the whole work well, if 
 they were not of superior benefit to the employee over the old sys- 
 tem, we should expect that long ago there would have been serious 
 efforts for their repeal, but, on the contrary, the workmen in these 
 countries have repeatedly indorsed their principles and declared 
 in favor of their continuation. It is furthermore significant that 
 among the scores of official and nonofficial commissions, committees, 
 and civic organizations in our own country which have investigated 
 the subject, upon most of which bodies both employer and employee 
 have been represented, practically all have reported in favor of the 
 principle of compensation as opposed to that of employers’ liability. 
 If a widespread consensus of opinion, based upon long experience, 
 careful investigation, and earnest desire for a wise and just solution 
 of a great problem can ever establish anything, surely it may be 
 taken for granted that the desirability of Avorkmen’s compensation 
 is no longer open to dispute. 
 
 The demand for a more or less automatic adjustment of compensa- 
 tion for accidental injuries to workmen is but one of the many phases 
 of a world- wide movement for the readjustment of the relations of 
 labor to capital and of both to society more in consonance with modern 
 notions of social justice. The thought behind this movement is that 
 if society en masse for the general welfare may command the self- 
 effacing loyalty of each of its constituent units society in turn must 
 shape and preserve conditions which will protect each unit in the 
 unequal struggle for individual well-being. 
 
 There is a groAving feeling that the individualistic theory has been 
 pushed with too much stress upon the dry logic of its doctrines and 
 too little regard for their practical operation from the humanitarian 
 point of view. We are discovering that we can not always regulate 
 our economic and social relations by scientific formulae, because a 
 good many people perversely insist upon being fed and clothed and 
 comforted by the practical rule of thumb rather than by the exact 
 rules of logic. 
 
 In the rebound, however, from the old notion Avhich, carried to its 
 final conclusion, compels each not only to wage his own battle for 
 existence and happiness, even though he fall in the fight, but which 
 bids him lie where he falls, there is danger that Ave may go too far 
 in the opposite direction and while helping the weak, which is good, 
 encourage the indolent, which is bad. We must be careful that in 
 the effort to relieve ourselves of the burdens which bear us doAvn we 
 
12 COMPULSORY WORKMEN'S COMPENSATION LAW. 
 
 do not take away the stimulating necessity of personal effort which 
 compels us to rise. We must find at our peril the happy mean be- 
 tween the hardship which breaks and the coddling which saps our 
 strength. That in our righteous anxiety to minimize human suffer- 
 ing we may miss this crucial point is one of the grave dangers which 
 the great civilized nations face to-day. The unfortunate must be 
 cared for ; the soldiers of industry who fall must be lifted up, but no 
 deadlier check could be put upon the upward march of civilization 
 than to embark upon such a scheme of emotional socialism as would 
 put upon the backs of the strong not only the care of those who can 
 not but of those who can but will not bear their own burdens. 
 
 In framing our laws we must never lose sight of the vital distinc- 
 tion between helplessness, which is a misfortune, and laziness, which 
 is a vice. It is a lovely thing to give in case of need, but it is a far 
 more important thing to so adjust conditions that giving will not be 
 necessary. Laws which afford financial aid for the old and sick and 
 unfortunate who can not help themselves are necessary and righteous, 
 but laws which, by insuring safe and healthful and remunerative 
 work for the young and strong, enable them to care for themselves 
 in time of misfortune and sickness and old age are better. Laws 
 which compel industry to pay, irrespective of negligence, for acci- 
 dents which entail injury and loss of earning ability or death are 
 commendable and desirable, but laws which will prevent the acci- 
 dents are far more so. Clean, sanitary hospitals for those who are 
 torn and mangled by defective machinery or diseased by unwhole- 
 some surroundings are necessary and p-ood, but safe machinery and 
 sanitary workshops are better still. In other words, in dealing with 
 industrial conditions, the prime duty of society, and therefore the 
 prime study of the lawmaker, should be to prevent or minimize the 
 evils which give rise to the necessity for assisting the helpless, for in 
 law as in medicine the homely maxim holds good, that “ an ounce of 
 prevention is worth a pound of cure.” 
 
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