the community might well be gratified with a great achievement, and the fraction would be no worse off than the tens of thousands of employees who are not, as a rule, included in current compulsory proposals.

Even if a legislature shall be free to compel systematic compensation, it should prefer the voluntary method which, with compulsory power in reserve, might be more widely commended to employers. For, all things considered, it will appear that this method is the better one.

It will be objected that compulsion would gather in more employers than would persuasion, even with the threat of force behind it; but there is every reason to believe that a successful initiation of the voluntary method would promote its extension especially among the so-called "dangerous trades," which are the conspicuous objects of systematic compensation.

It will be objected that employers would accord a lower compensation than the state would impose; but the voluntary rates must conform to a standard approved by the public authorities. This standard would require reasonable compensation as an invariable but, as we shall presently see, not necessarily the only factor in a scheme.

We may concede, however, that did these objections really dominate the whole problem, a legislature, had it the power of choice, might choose compulsion, but they are outweighed by the positive advantages of the voluntary method.

Among the industries commonly suggested for systematic compensation, some are located in all the States, others in many of them, and a number of single establishments operate in several States. For these the voluntary method promises, in various ways, a better opportunity than the compulsory.

It is manifestly desirable that an industry, and especially a single establishment, shall not be subjected to divers compensation schemes in divers jurisdictions, if only for the reason that diversity must increase the difficulties and the cost of administration. But uniform schemes as widely effective as industrial conditions would commend, were they allowed free play, would be narrowed or blocked by an extensive adoption of compulsory schemes among the States. For, even assuming a wider agreement on cardinal points than is likely to obtain, the remaining disagreements coupled with inevitable variations in matters of detail would be sufficiently vexatious.

While uniformity would not be perfectly assured by the voluntary method it would be greatly facilitated. The very simplicity of the basic law I have suggested-the release of the employer from all liability in damages except in case of his culpable negligence-should commend its enactment in the several States, and, while there would be more room for differences in respect of the standards for a voluntary system, these should be so simple in comparison with the provisions of a compulsory law as to render a wide uniformity attainable.

All voluntary plans being held to the cardinal requirement of reasonable compensation, each may, from this point, be developed according to the best interests of employers and employees in the several industries or in particular establishments. Here an employer will present a plan of his own devising; there, employer and employees may agree upon one embodying special and mutually accept

able conditions. In short, there will be a useful freedom of choice; and in no specific direction will this freedom be more advantageous than in facilitating employers' associations.

Under a voluntary régime employers, whom the legislature can not compel to unite in associations, will have for associated effort not only a better choice of means, but a broader field of action than a compulsory régime would afford. For the latter will tend to divide and cramp effort by State lines, while the former should encourage the operation of associations over whatever area convenience shali dictate.

In reviewing the foreign laws I gave the largest space to the German employers' associations for the very purpose of emphasizing the main features of a scheme whose principle should be widely adopted because of its broad distribution of cost and its service in the matter of safety regulations. This encouragement to associated effort of broad range is, in my judgment, one of the strongest arguments for the voluntary method.

The freedom of action assured by the voluntary method is likely to be of special utility in view of a rising interest in workmen's sick benefits and old-age pensions. Influenced partly by the admirable workings of existing benefit and pension systems and partly by foreign social insurance schemes, there is a growing impression that accident has been overemphasized-that the greater, though less tragic, misfortunes of sickness, invalidity, and superannuation should be also put in the way of systematic relief.

Without discussing the State's ability to institute general benefit and pension schemes wholly or partly at the public charge and considering these as connected with particular industries or establishments, it will, I think, be agreed that neither master nor workman can be forced to maintain them. Such schemes must be purely voluntary and, though master and workmen might be willing to contribute to each in agreed proportions, the sickness benefit will, broadly speaking, be largely the concern of the workman, because its moving cause affects him so sharply while the master may assume the larger interest in the pension, because it tends to encourage long and efficient service. Now, the combining of accident, sickness, and superannuation relief under one general system obviously makes for homogenous and cheap administration, and in this relation we remark the coordination of these things in the new Hungarian law. It would, however, be difficult, to say the least, to combine a compulsory accident scheme with voluntary sickness and pension plans. Indeed, it is worth serious consideration whether a compulsory compensation law would not only discourage the institution of new plans but affect existing ones. On the other hand, a voluntary compensation scheme could be administered with sick relief and pensions with advantage to all concerned.

A compulsory scheme requires an intimate participation by courts. commissions, or other public bodies, which means more red tape, delay, and expense than under the voluntary method. This needs from the Government only recognition and supervision. For the rest it assures the handling of a complicated business matter by a business organization-an assurance quite as valuable from a social

1 See p. 1453.

as it is from a business standpoint, for every voluntary arrangement by employer and employee equitable in its nature and executed in good faith improves their relations.

GENERAL CONCLUSIONS.

The number of industrial accidents in the United States and the resulting loss to victims and their dependents are sufficiently serious to demand reasonable measures to lessen the one and-special concern of this brief-to mitigate the other.

Foreign experience demonstrates the advantage of moderate compensation systematically given by employers to many victims over damages wrested from them by a few.

Foreign experience demonstrates the intrinsic complexities of a workmen's accident compensation scheme and its relation to other industrial problems, notably the greater problems of sickness and unemployment.

Foreign experience demonstrates that systematic compensation does not, to say the least, tend to reduce the number of accidents, and that the cost, while generally on the increase, is not as yet a noticeable burden on employers as a whole, especially if it be reasonably distributed by means of insurance, of which the German associations afford the best type.

Foreign experience demonstrates by persuasive example the need of deliberation in formulating a scheme. And each country, while scrutinizing its neighbors' schemes and adopting or adapting this or that feature, must finally square its own with local habits and institutions.

Compulsory compensation is the rule abroad and, assuming for the moment that it can be constitutionally enforced here, we emphasize several features essential to a just scheme.

A compensation rate that shall be both fair to the workmen and reasonable, not only for the employing classes embraced in an initial scheme, but for other and perhaps financially weaker classes, to whom, in justice to their workmen, its extension may be expedient. A speedy settlement of disputed claims.

A framing of the statute that will discourage malingering, and a medical service that will deal adequately with disputes respecting the fact or degree of injury.

An opportunity for insurance so that the workman shall be assured of his just dues and the master enabled to distribute his risk. And insurance by the master in an approved institution should shift his obligation.

Coming to the law of the constitution and considering first the question of jurisdiction, I am of the opinion that the Federal Government is quite as incompetent to enact a compensation scheme for any class of workmen within a State-excepting, of course, Federal employees as it would be to undertake local poor relief. And, constitutional obstacles apart, Federal intervention could only make mischief-a mischief already done to a degree by the Federal employers' liability law. Workmen's compensation is practically, as well as legally, a matter for the States so far as State territory is concerned.

Considering the constitutional powers of the States in respect of a compulsory compensation scheme, it appears that certainly in some States, and perhaps in many if not all others, a requirement of trial by jury will inject the slow and costly process of suits at law into a scheme whereby a speedy and cheap procedure is of prime importance.

Furthermore, each State, being forbidden to deny anyone "the equal protection of the laws," is obliged to adopt for all workmen affected a uniform basis of compensation; and the rule that classifications shall be reasonable and not arbitrary, while not a bar to a working scheme, will require most skillful drafting in order to respect its obligation.

That constitutional requirements will at least embarrass a compulsory compensation scheme is generally conceded. More importantly there is, even among intelligent sympathizers, a widespread uncertainty and unbelief as to the validity of its very basis-master's responsibility for injury regardless of fault.

Considering this vital question, I am of the opinion that from a constitutional standpoint a master's responsibility can no more be made to depend on the nature of his industry than on the size of his bank account. Whether the employment be safe, hazardous, or extra hazardous, injury to the servant is the vital fact the inevitable point of departure for all legal reasoning.

To hold otherwise would give a preference abhorrent to our rule of equality before the law. We can not say that one maimed by a scythe is constitutionally barred from a relief that may be lawfully given one maimed by a locomotive or a more glaring prejudice already contemplated-to one injured while merely employed by a concern operating locomotives. The fact that the man with the scythe is not "organized" may account for his not demanding relief, but it does not affect his position in law. I am far from maintaining that a scheme must at once embrace all servants. I do not anticipate its ultimate extension to all as inevitable, but certainly its principle must be potentially comprehensive. In short, if the principle of compulsory compensation is constitutional it must, potentially, be applicable for the benefit of any servant and imposable upon any master.

But I am of the opinion that the principle is unconstitutionalthat an American legislature can not lawfully require a master to pay a fixed compensation to a servant injured in his employ without regard to the cause of injury.

If compulsory compensation is barred by constitutional limitation a large number of systematic compensation may be attained by voluntary methods. Indeed, even if compulsion be lawful, the voluntary method is preferable. Our faculty of business organization would thus be employed in a most beneficial kind of social work. Under this method alone could we utilize to the best advantage the principle of that admirable foreign invention—the German employers' association.

Legislatures should persuade to this course by relieving employers who shall adopt satisfactory methods from being mulcted in damages for accidents except where they are grossly in fault. This assurance should greatly promote the voluntary method, which is already gaining ground through its own merits. It is demonstrable-nay, it is

demonstrated abroad-that modern business organization is competent to administer broad compensation systems with benefit to all concerned, especially by distributing the responsibility and the risk by means of association.

Whatever the ultimate disposition of the constitutional problems, the plans of the States that are seriously considering compulsory compensation should show a reasonable uniformity, of which there is no sign at present, and a more careful drafting than is disclosed in the several laws already enacted.

NEW YORK, November, 1910.

30198°-S. Doc. 338, 62-2, vol 2- -94

CARMAN F. RANDOLPH.