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The Green Bag

and of avoiding wasteful litigation and strife, has been declared to be impractical in democratic America because it deprives the employer of his property without due process of law. The court acknowledges the cogent economic and sociological arguments urged in sup port of the statute, but it finds that when our constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another, and says: "This statute imposes such a liability which was unknown to the common law, and we think it plainly constitutes a deprivation of liberty and property under the federal and state consti tutions unless its imposition can be justified under the police power." The decision was that it cannot be so justified. This decision is regarded by many as the culminating injury done by the courts to the workingmen in a long series of decisions unfavorable to their inter ests and throwing upon them risks they are unable to bear. It has been de nounced in some quarters in unmea sured terms and in others it has been condemned in earnest and temperate argument as a public misfortune and as "a mistaken interpretation of the con stitution which is, unconsciously, a futile attempt to fasten upon the work ingmen an unjust and intolerable burden from which all other civilized nations except one have relieved him." Into this argument I cannot enter here. The decision is but another illustration of the conflict that has arisen between the people and the courts out of the efforts of the court to preserve the rights of individuals under the Constitution against the will of the majority expressed in legislation. The subject of the constitutional guar

antee in this case is not liberty, but property. In the former case it was not the liberty of person plainly intended in Magna Carta, but the liberty of con tract which is a conception of modern commercial society. So also the property involved in this case is not the goods or lands named in Magna Carta and in the Constitution, but money paid as damages for an accident without fault, and the decision is that because by the law of the land when the Constitution was adopted no such payment could be required, this is an immunity of the citizen protected by the Constitution against the power of the state. On the other hand, it is insisted that there was and is such liability in maritime law by which the ship is made responsible for accidents to sailors in the course of the voyage, and that the state may well make it a condition of the carrying on of industries, at least in large establish ments using machinery, that the in dustry shall bear the loss of accidents to men as well as to goods. It does not solve the problem, however, to per sonify the industry. The real question is whether you may make a man pay for a loss that was no fault of his. You do so when you make a man liable for the acts of his servants although he has used due care in selecting and managing them, but that is a caseof imputed fault, and the law and even religion is familiar with that conception. In New Jersey and elsewhere there has been an attempt to avoid the issue by means of imputed consent, and the later statutes have pro vided that both employers and em ployees shall be presumed to consent to the plan of compensation unless they give notice that they will not. We, as lawyers, need not commit ourselves in advance upon a knotty question like this. It may become our duty to pre sent as strongly as we can the reasons