of most of the negroes from the occupations in which the wage should be adjusted to the efficiency of the native whites.

Yet one of the most striking facts indicated by a comparison of the earnings of the races in different industries is that within certain limits earning capacity is more the outcome of industrial opportunity than of racial efficiency. This fact becomes evident when the average weekly earnings of the members of a single race in the cotton or woolen and worsted goods industries, as reported in the official abstract of the Immigration Commission's report on immigrants in manufactures and mining, are compared with the earnings of the same race in other industries. The Lithuanians, for example, earn an average of $12.24 weekly in the manufacture of agricultural implements and vehicles, $11.60 in clothing, $13.60 in copper mining and smelting, $9.87 in furniture, $12.89 in iron and steel, $11.98 in iron-ore mining, $9.50 in leather, $12.85 in oil refining, $10.87 in shoes, $10.67 in sugar refining, but only $7.86 in cotton and $7.97 in woolen and worsted goods manufacturing. A legal minimum wage would apparently be of advantage in promoting a better distribution of such immigrants among our various industries.

The indirect economic effects of the establishment of a minimum standard-of-living wage may be mentioned summarily. First, the establishment by legislation of a minimum standard-of-living wage would make available to the poorest and most helpless of the laboring population a share in the advantages obtained by the better-to-do and stronger through voluntary association. Well-conducted, powerful labor unions do more for their members than merely to establish a minimum wage and maximum hours of employment, but the weak and poverty-stricken unions of the sweated workers are scarcely better than none at all. The advantage of the establishment of a minimum wage and standard conditions of employment generally by law instead of leaving it to the action of private trade associations is the greater security for the protection of the interests of the public against the abuse of irresponsible power in the interests of special classes. Secondly, the line would be drawn more sharply between the unemployable and the merely unemployed. The unemployable are always with us, and must be provided for by some means in any event. The establishment of a minimum standard-of-living wage would define more accurately the limits of that unfortunate class, and thus facilitate the task of giving its members treatment suitable to their condition. Although the number of the unemployable might be greater than that of the destitute under present conditions, the isolation of one more of the causes of destitution would be a gain to the cause of scientific poor relief. It would also tend to restrict the influx of the unemployable from abroad, thus at once checking the increase of inferior labor and raising the average efficiency of the domestic supply. Thirdly,

there would result a restriction of the field of competition between workpeople. The wage-earner whose chief recommendation is willingness to work for a pittance would lose the advantage of his submissiveness, and strength and skill would become of greater importance in the obtaining of employment. Fourthly, there would result a restriction of the field of competition between employers. The employer whose chief stock in trade is his shrewdness in driving hard bargains with his employees would lose the advantage of that pernicious superiority. The peculiar qualities of the best type of business man, imagination, judgment and courage in undertaking legitimate business risks, and sagacity in the management of his establishment, would become of greater importance in the achievement of success, especially in the sweated industries. In short, the indirect economic effect of the establishment of a minimum standard-of-living wage would be to promote the concentration of competition between workpeople and between employers upon efficiency.

The ultimate consequences of a legal minimum wage are not so certain. The legal protection of the standard of living cannot directly bring about a rise in the general level of wages. In the first instance, it can affect only the wage-earners who are earning less than the minimum. To such as these it offers the hope of employment at the standard-of-living wage. It cannot guarantee such employment. In the long run wages must depend upon efficiency. Temporarily, by the establishment of a legal minimum workpeople may be able to secure a higher wage than they are worth. In the long run, however, unless they increase their output to correspond to their increased income, they will not be worth to the community what the community is undertaking to pay them. The state which assumes the responsibility for establishment of a minimum wage must also assume the responsibility for the establishment of a minimum standard of efficiency.

Minimum wage legislation and industrial education must go hand in hand together. In such a country as the United States it may also be necessary to restrict the supply of labor of the lower grades. The establishment of a legal minimum wage would of itself tend somewhat to obstruct the influx of laborers of low efficiency; but the otherwise unrestricted influx of laborers of low efficiency would also tend to obstruct the maintenance of a minimum wage at the native standard-ofliving level. Probably some further means of restricting immigration would be necessary. It must not be forgotten, too, that a minimum wage law cannot cure the evils that arise from the foolish spending of incomes, small or great. Some immediate protection, however, for the American standard of living is necessary, and an appropriate means is the establishment by legislation of a minimum wage.

EMPLOYERS' LIABILITY AND WORKMEN'S

COMPENSATION LAWS

BY J. WALTER LORD, OF THE BALTIMORE BAR

(From an Address delivered at the Seventeenth Annual Meeting of the Maryland State Bar Association, July, 1912)

The subject which I shall undertake to discuss in the following paper is one that has received elaborate consideration in this country, particularly within the past three years. The paper, therefore, does not reflect any original thought on the part of the writer, but is rather an attempt to compress, within unobjectionable limits, the conditions out of which the movement toward the enactment of workmen's compensation acts in this country has developed, and the constitutional and economic questions related to that problem. My justification for selecting this subject is not so much that these questions are academically novel and interesting, as that the subject is itself a timely one, and that we may feel reasonably assured that the "law of negligence," in cases of occupational injuries, will very soon be superseded generally in this country, as, indeed, it has been almost everywhere else, by the "law of compensation."

It is a somewhat interesting coincidence that contemporaneously with the decision of the English Court of Exchequer in Priestly vs. Fowler (3 M. & W. 1, decided in 1837) — the case which is considered as the genesis of the doctrines of fellow-servant and assumption of risks -the Kingdom of Prussia took the initial step in the recognition of the principle that the employer should be held to an absolute liability in the case of occupational injuries. The replacement, by Prussia, of the old law of negligence by its first liability law of November 3, 1838, relating only to railway employees, was doubtless based upon the obvious hazard of that industry, which had just then been introduced in the country. Had there been presented to Lord Abinger, in Priestly vs. Fowler, a situation where the employment in which the injury occurred was intrinsically hazardous, or a case wherein the circumstances of the injury were more complex than those involved in the extremely simple case of a butcher's helper injured through the carelessness of his master's wagon driver, with whom he customarily worked, it is not improbable that the current of our law respecting a master's liability for his servant's injuries might have been changed. However that may be, it is of some interest to note, that from these contemporaneous events there has developed in Germany a system of workmen's compensation and industrial insurance which gives prompt and effectual pecuniary relief, without economic waste, in all

cases of occupational injuries, whilst in England and America, through rigorous applications of the doctrines of fellow-servant and assumed risks, there developed a situation characterized by denial of pecuniary relief in the great majority of cases of industrial accidents, great economic waste arising out of the conduct and defense of damage suits and resultant antagonism between employer and employee.

The present movement in the direction of workmen's compensation laws has proceeded from a recognition that the rules of law governing the workmen's remedy for injury received in the course of his employment, as formulated in the safe and simple industrial conditions of the early nineteenth century, are not adapted to the hazardous and complex conditions of modern day industry; and it derives quite as much of its strength from practical considerations as from sentimental humanitarianism.

EMPLOYERS' LIABILITY LEGISLATION

The forerunners of the present movement are the so-called employer's liability laws, abrogating or modifying the defense of fellow-servant and, in some instances, the defense of assumption of risks. As early as 1855 the State of Georgia passed a law, applicable to railroads only, abolishing the defense of fellow-servant. In 1872 the State of Iowa passed a similar law; and the example thus set was followed by Kansas in 1874, and Wisconsin in 1875. The first statute relating to all employments was passed in England in 1880. That act, however, did not abolish these defenses; it merely modified them. The courts of England had gone to a considerable extent in the application of the doctrines of fellow-servant and assumption of risks, and the object of this law was to restrict the scope of those doctrines. This act has served as a model for Alabama (1884), Massachusetts (1887), Indiana (1893), New York (1902), Pennsylvania (1907), New Jersey (1909), Vermont (1910). In addition to the States thus enumerated, other States, as well as the Federal Government, have passed laws, applicable to railroads only, abolishing the defense of fellow-servant; so that in 1910, when the first workmen's compensation act was passed in this country, the situation on this side of the water in respect of employers' liability laws was as follows: Eight jurisdictions had laws modifying, but not entirely abrogating, the defenses of fellow-servant and assumption of risks in all employments; two jurisdictions had abolished the fellow-servant defense in the case of all corporations, and one (Colorado) in the case of all employments; fourteen had abolished it, but only in the case of railroads, and three had modified it in the case of railroads.

After seventeen years of experience under her employers' liability law, England decided that it was a failure; that it did not adequately

meet the conditions of modern industry. Indeed, this was the conservative opinion in the early nineties, when, in a memorandum from the Home office to the Royal Commission of Labor (1893), which bore the approval of Sir Frederick Pollock, we find it said: "The truth is that to the workman litigation under the act has more than its usual terrors. It is not merely that litigation is expensive, and that he is a poor man and his employer comparatively a rich one, it is that when a workman goes to law with his employer he, as it were, declares war against the person on whom his future probably depends; he seeks to compel him by legal force to pay money, and his only mode of doing so is the odious one of proving that his employer or his agents his own fellow-servants have been guilty of negligence. Add to this that the legal proof of such negligence is often extremely difficult, the broad result is that a legal claim for damages only answers where the injury is very great, and the workman is prepared to leave his master's services." (Report of Wainwright Commission, New York, 1910, p. 40.) The feeling in England that the employers' liability law was inadequate culminated in 1897, in her first workmen's compensation act, which was limited in its scope to what were deemed hazardous employments. The act was extended later (1906) so as to embrace all occupations, including even domestic service. But the wisdom of this extension, in the light of experience under the act, may be open to serious question.

There is no reason to suppose that the employers' liability laws in this country have been any more effectual than the one in England. Those which are not modeled strictly upon the English Act, but which abrogate the fellow-servant defense, are limited, in the main, to railroads; and this is only one of the many hazardous industries in this country. It is conservatively estimated that the number of industrial accidents resulting in death in this country approximated 35,000 annually, whilst the non-fatal injuries exceed 500,000. It is, of course, impossible to know in what percentage of these there is a substantial recovery; but from cases studied by the State Commissions of New York and Wisconsin (ibid. p. 88, et seq.) it would appear that in not more than 20 per cent is there actually litigation, and that as to the balance, in 60 per cent of the cases of death, and in a like percentage of the cases of non-fatal injury, the claimant has received either nothing at all or, at the most, only funeral or medical expenses.

Under the broadest kind of an employers' liability law there still rests upon the injured workman, as a prerequisite to his recovery, the burden of proving personal negligence on the part of some one as the proximate cause of injury. Industrial experts tell us that in the highly developed state of organized industry there are, in the case of accidents not due entirely to the dereliction of the workman himself, a great many contributory factors in the chain of causation, which are