lation, a branch of the International Association of Labor Legislation.

The American Association of Labor Legislation favors all legislation that is in the interest of labor, and we understand that no legislation can be in the true interest of labor that is not also perfectly fair and just to the employer, and therefore. I think the American Association has always taken an impartial view of the question of employer's liability and workmen's compensation, as well as the other questions that relate to the protection of labor.

It is safe to say that there has been no legislative movement that any of us has witnessed that has been so strong in recent times as the movement away from the common law relating to employers' liability. It is characteristic that at a recent meeting of the Manufacturers' Association the point was revealed that 90 per cent of the manufacturers declared their opinion that there should be some change, although they were not all agreed as to the direction in which that change should be. Legislative commissions have been appointed in a number of States. I believe there are seven-in Connecticut, Massachusetts, New York, Ohio, Illinois, Minnesota, Montana-and all those commissions have declared in favor of the abandonment of the common-law principle of the liability and the substitution of the principle of compensation, the Connecticut commission with some reservations and very cautiously, but still expressing its belief that that would probably be the solution of the problem.

Now, you all know that this movement in the direction of workmen's compensation received a very serious, and one might say disastrous, check in the spring of this year through the decision of the New York Court of Appeals on the compensation act of that State of 1910. It will be necessary for any court to make up its mind as to the merits of the arguments relied on by that court. I realize that it is a decision that comes from a court of the highest standing in this country and that it was the unanimous decision of the court, notwithstanding I am thoroughly convinced that the decision is one that will not stand and that in a comparatively brief number of years it will be regarded as mistaken and antiquated.

Mr. Kellogg has referred to the analogies that were pressed upon the court by counsel and that the court rejected-the analogy of the railroad companies' liability for fire, the analogy of the Nebraska law making railroad companies absolutely liable for injury to passengers, and another liability which I shall presently refer to.

The New York Court of Appeals said that the liability for fire caused by locomotives is not in point, because the relation was not contractual. Mr. Kellogg has referred to that. Sometimes our courts are charged with protecting with greater care and solicitude the rights of property than the rights of persons, and it seems strange that the law should be allowed to protect mere property against acts that are not due to any fault when it can not protect life and limb. However, suppose there is a difference between person and property, the absolute liability toward passengers is a liability toward the person-the liability toward a person who stood in a contractual relation. It is true that the court of appeals says that the railroad company in Nebraska had accepted its charter subject to a law imposing that liability, but the Supreme Court merely, at the end of its de

cision, briefly referred to that argument. In very much greater detail in the other decision on the Nebraska law it devoted the greater portion of its opinion to showing the inherent reasonableness of an absolute liability on the part of the railroad company toward the passenger, based upon considerations of the public policy as making for the utmost safety of the traveling public.

Another analogy was pressed upon the court, which the court rejected, and that was the liability of the shipowner to the marine. The court said that the maritime law is absolutely peculiar and can furnish no analogy to the common law. It says that those cases were cases that were not cognizable at common law. The cases in New York and Pennsylvania, in which the shipowners' liability was enforced were cases brought in courts of common law, in which those courts applied the principles of maritime law. The court of appeals says that the position of the mariner is quite exceptional. It is true that at the time the common law was formed there were not used in industries those mechanical forces which make the great danger at the present time. Practically the only calling in which there was an exceptional danger to life and limb was the calling of the mariner, and there the rule of absolute liability was established, and I submit that exactly the same anomalous, peculiar position, calling for the exercise of extraordinary power on the part of the State, that in the old law existed in favor of the mariner, now exists in favor of those who are employed in dangerous industries, and above all in the operation of railroad trains.

More than that, the court of appeals concedes that it is within legislative power to abrogate the fellow-servant doctrine and the defense of contributory negligence. It seems to me that this is an additional argument in favor of the absolute liability that was proposed to be established by the act, and which the court rejected, for the liability of the master for the act of the servant is a rule of absolute liability. If the master can not protect himself by the highest degree of care in selecting and supervising his servants, from liability for the carelessness of his servant, the law makes him liable though he is not at fault at all, and that is a rule of absolute liability. Can it make any difference whether the injury is due to a fault in the imperfection of some part of the plant, or whether it is due to an imperfection in the human machinery which he uses? The two cases are exactly parallel, and therefore if the court of appeals says you can abolish the fellow-servant doctrine, and also contributory negligence, it follows, in my opinion, with irresistible logic, that you can also establish the rule of absolute liability for injury due to risk of the trade, or to the inherent danger of machinery used and employed.

Furthermore, the court of appeals says the proposed rule is revolutionary; if you want to have it changed, do not come to the courts, but go to the people. The legislative power is not vested in the people; it is vested in the legislature. If the court of appeals suggests— as it seems to me to suggest, in its opinion-a constitutional amendment, the court of appeals intimates that if the constitution of New York is amended-and you know a constitutional amendment has been suggested and is proposed now-that then that act might be sustained. That would mean that the due-process clause of the State

Would have a different meaning from what it has in the Federal Constitution, for otherwise the court of appeals would have to throw out again a new law enacted under the proposed amendment.

Now, in my opinion there can be no different meaning of due process in the State and in the Federal Constitutions, and due process can not mean a principle which is in any way susceptible of improvement. If you say that the due-process clause ought to be changed by an amendment, you state a proposition that defeats itself, because due process was intended to be a permanent and-as the Supreme Court of the United States put it in the Utah miners' casean immutable principle of justice. Therefore, as the Supreme Court said in another case, the due-process clause does not stand in the way of any principle that may, in the changing opinions of mankind, commend itself to an advanced sense of justice, and that there is nothing in the due-process clause which prevents the acceptance on the part of the American people of any principle that may come from other systems of law and that may commend itself to their sense of justice.

Now I should not insist upon the accordance of the compensation principle with the principle of due process if I were not convinced that the principle of compensation within the limits to which it is to be restricted is a just principle, for it means nothing but this: That if an employer uses and requires his employees to use, for the purpose of his business, machinery which, humanly speaking, is inevitable to result in injury, that the burden of that injury should not fall exclusively on the victim, but that it should be shared, at least in part, by the employer; and you all know that no workman's compensation act has as yet ever attempted to place the whole of the burden on the employer, and that it is one of the differences between compensation and liability that compensation is in the nature of a provision for relief and not in the nature of a full and absolute indemnity.

I feel all the more confident in my dissent from the opinion of the court of appeals because it is not the first time that a novel principle has on its first discussion and criticism in the courts met with defeat, and that the courts later on proved to be mistaken.

You may remember that when the fourteenth amendment was enacted there was a very carefully considered opinion delivered by the Supreme Court of the United States. The United States Supreme Court expressed itself to the effect that the time would hardly ever come where the equal-protection clause would apply to any other cases than those involving the relation between the two races. A few years later, Chief Justice Waite said, in deciding the Granger case, that the question of the reasonableness of a rate was one for the legislature, and that the only remedy for an unreasonably low rate was at the polls and not with the courts. It did not take more than six or seven years for the court to abandon that principle, and now it is one of the cardinal principles of our constitutional law, that railroad rates may not be regulated to the point of confiscation. Is it not clear that courts sometimes misapprehend the trend of a new constitutional development?

I am a teacher of the law, and while I know that the opinion of law teachers in this country carries no particular weight, certainly 30198-8. Doc. 338, 62-2, vol 2—5

not before the courts, I was yet interested to know how my colleagues stood with reference to this constitutional question. So I instituted an inquiry among the law schools connected with the American universities, and the answers received from about 20 correspondents showed that only two of the men to whom are committed the training of our youth, and who influence the legal thought of the coming generation-only two agreed with the court of appeals. The CHAIRMAN. Two out of 20?

Mr. FREUND. I received 17 answers. Three did not answer. Among those who felt clear that the court of appeals had made an error were such well-known men as Prof. Roscoe Pound, Prof. Goodnow, and Prof. Willoughby. They are well known in this country and outside of this country. I mention this because it shows there must be two sides to the question.

The CHAIRMAN. Was this New York case exhaustively argued on both sides?

Mr. FREUND. It was exhaustively argued on both sides. In support of the law the very able counsel of the New York commission, Mr. Cotton, presented a brief. However, it was argued on the side of the employers by one of the most eminent lawyers in the State of New York, Mr. Marshall, and undoubtedly his opinion had a great deal of weight.

It has been asked whether Congress has the same power as the State. I think that with reference to interstate commerce that question was finally settled in the lottery cases, in which the commerce power was very fully discussed. It was again touched upon in the Employer's Liability case (207 U. S.), although there, of course, the decision went off on another point.

As to the possibilities of a Federal act, the Federal Government must consider this matter in three different relations-in relation to its own employees (Government employees); in relation to the interstate-commerce employees; and in relation to the District of Columbia and the Territories.

As to the Government employees, we have an act of 1907, which in my opinion is most inadequate. Certain imperfections in that act have been called attention to, and have in part been remedied by the past Congress, but not entirely. It seems to me that before the Federal Government can, with good grace, impose very onerous duties in the way of liability and compensation upon private employers, it is its duty to give a proper measure of justice to the employees that are injured in its own service. The Federal Government has the power to be as liberal as it chooses to be, and it has the power to be as illiberal as it chooses to be, and I submit that here is a field where the Federal Government can very well test the operation of the new principle, to see what it costs and what is feasible in the way of compensation and what is not feasible. At best, the working out of a compensation plan is a difficult thing.

Mr. MOON. I want to say with respect to that act that I had something to do with its formation. It is exceedingly illiberal; there is no doubt about that. It was intended only as a tentative measure; it was a start. It was fully expected that it would have to be enlarged.

Mr. FREUND. It was very much better than nothing.

Mr. Moon. It was very hard work to get anything. There was a settled opposition, and we felt that the only way was to start it; the only way to get recognition at all was to make it very moderate in the beginning. I confess to you, as one of the framers of that act, that I am a little ashamed of its illiberality.

Mr. FREUND. Now, as to interstate-commerce employees, I believe that the duty of the Federal Government there probably comes last, because that is a matter that the States may take care of and which is taken care of to some extent by the States. However, the existence of the Federal employer's liability law side by side with the State law creates difficulties as to their mutual relation which I think should be dealt with without delay.

When that Federal act was before Congress in 1908, I came expressly to Washington to urge upon the committee the consideration of a clause to the effect that in that section of the act where all contracts exempting from liability are invalidated, an exception should be made in favor of contracts expressly authorized by State law.

I think the desirability of such a clause would be evident now that in the States we have optional measures which allow the contracting out, and which yet can not be availed of in connection with interstate commerce. Whatever act may be passed, I hope that the Federal compensation commission will see its way to recommending a liberal clause for the purpose of permitting parties to substitute by contract other schemes, not only relief schemes, which may be very desirable for the purpose of testing out other ways of taking care of that problem, but also giving power to place themselves by contract under a State law so that within the same State, in the same railroad company, there may not be two laws applying to exactly the same accident, as the case may be at the present time. I shall say something more about optional schemes presently.

I wish to speak, in the third place, with reference to the matter of the District of Columbia. I should be very glad, indeed, if an act could be passed at the present time with reference to the District of Columbia, because there the Federal Government has a clear duty which can not be discharged by any other Governmental authority. It seems to me that an act applying to the District of Columbia, and applying only to steam railroad companies in the District of Columbia, would be particularly simple in the scope of its operation. It would practically affect only operations at the railroad depot, concededly the most dangerous kind of work. It would apply only to four railroad companies, if I am not mistaken-the Pennsylvania, Baltimore & Ohio, Chesapeake & Ohio, and Southern. Two of those, the Pennsylvania and Baltimore & Ohio, have already relief plans, which with some modification might be adapted to the requirements of a compensation law.

The CHAIRMAN. Did I understand you to say that you thought the law should be made to apply only to the steam railroads?

Mr. FREUND. This might well be so for the beginning, in order to test the law. The thought in my mind is this: Undoubtedly any act that is passed will be carried to the Supreme Court. What we want now, and I think the whole country wants it, is to know whether the court of appeals is right or wrong. Now, if we wait for a State law to go up to the Supreme Court of the United States,