I will close this survey of the functions of a great university with two or three observations, the truth of which depends upon the positions already taken. It seems surprising to have to insist upon the fact that a university is, after all, an educational institution, and that whatever may be said about its athletic victories, its magnificent equipment, its proud history, its multitude of students, and the variety, novelty, and attractiveness of its curriculum, its main business is instruction. The excellent performance of all three of its chief and true functions depends, at the last, upon its teachers. It is the teachers, more than all else, that make the truly great university. In their work, with and for their pupils, and with and for the public, whether more directly or indirectly, the university ideals must be realized, if they are realized at all. They are the really important personages. The president and trustees are not so much the "bosses" of the professors as their servants. The president and the trustees are over the professors in the sense that the selection and support of the professors are their solemn trust. But the professors are above the president and the trustees in that the true functions of the great university are discharged by them. In their work the ideals of the higher education culminate. If the one set of officers gets and distributes money, the other wins and shapes the minds and souls of men.

But no matter how well qualified the man himself may be to discharge his official functions, he is dependent to a large extent upon the means which are placed at his disposal. And what is too often overlooked in this connection is the important fact that, in the services of the university, so far as the training of its students is concerned, the nature of the curriculum is of primary interest. No teacher can train his pupils, mentally or morally-either in the way of a liberal general culture, or so as to make of them disciplined specialists upon a basis of such culture-if he is obliged to do his work in the midst of a loosely organized or disintegrating educational system. For this reason the question of the curriculum becomes so important as practically to determine the success or the failure of the individual teacher in his attempts to impart the really "highest mental and moral culture." Nor can the success of the teacher fail to be profoundly influenced by the kind of consideration which is accorded, within the university circle and by the public, to the professorial office. The curriculum and the professorial office require independent treatment, so vital is the relation they sustain to the answer which the universities of this country must give to every inquiry into the reason for their existence and for their own high

estimate of their own value. I shall discuss these subjects in later numbers of THE FORUM.

Are the institutions of the higher and the highest education in the United States worth, as measured by any sane and appropriate standard of values, the immense sums of money which are now being invested in them? Yes, if they are going to discharge in largely increased efficiency their appropriate functions toward the mental and moral training of the leaders of the national life, toward the advancement of the arts. and the sciences and the comprehension of the more important truths of life, and toward the diffusion of all this culture among the common people. No, if they are determined constantly to reduce the disciplinary value of their courses, by rendering them more heterogeneous and ineffective, and more devoid of the more refining and morally uplifting kinds of culture; to respond no more generously and worthily to the stimulating influences of the increasing number of the world's most pressing unsolved problems; and to command and to receive no more respectful and cordial hearing when the attempt is made to disseminate amongst the people at large the truths whose possession is their choicest treasure. GEORGE TRUMBULL LADD.

EMPLOYERS' LIABILITY IN THE UNITED STATES.

It is, perhaps, not stating the case too boldly to say that in the business world the court of law is becoming more and more unpopular every day, and that among thoughtful men the wager of the lawsuit is rapidly becoming the last and not the first resort. It has, indeed, become almost an axiom with us that the successful lawyer is he who manages to settle his cases and to keep his clients out of the courts. There can be but little doubt that much of the falling off of litigation in recent years, which so embarrasses the practising lawyer, is due to the growth of the idea that a trial by jury, and sometimes even by the court itself, is little more than a gambling enterprise.

This is not because there is any decrease in our respect for the high character and integrity of our judiciary, or for its learning and ability, but rather because we are beginning to realize the necessary uncertainty in the judgments of all human tribunals, the tendency to distortion in all human testimony, the frailty of the human mind and memory, and, above all, the inherent difficulty of making others see things as we see them ourselves. We are also becoming more and more practical every day, and have lost much of our old stubbornness, which would formerly have led us to fight for the principle involved in a controversy, irrespective of the consequences. The virus of profit-seeking is working within us, and makes us take cognizance of the cost, and especially the waste of time, involved in litigation. We are no longer willing to stop in our pursuit of wealth to quarrel by the way, or to cease producing in order to split hairs over the division of the spoils.

Perhaps there are no cases concerning which there is more general irritation, or which consume more time and thought, on the part of both the public at large and the courts themselves, than those in which there is involved the law of negligence as between employer and employee. Perhaps, too, there is no class of cases in which more general dissatisfaction with the courts themselves is to be discerned. For in these cases the elements of human suffering and human sympathy are especially strong, and the difficulty of administering the principles of the

law with manifest justice correspondingly great. In such cases each party is inclined—and, as long as human nature is as it is, will be inclined to disbelieve in the efficacy of the courts. Each feels that their inclination is to favor the cause of his opponent. The employer mistrusts the jury as he sees the anti-corporation prejudices of the average juror and his ever-present sympathy for the injured workingman. The injured employee is unable to understand the technical rules of law, or the justice of any rule which militates against his cause; and accordingly he mistrusts the judge in whose hands the enforcement of such rules is placed. He cannot understand the reason for delays of litigation, or for appeals and new trials. Nor is he often able to discriminate between the faults of the law and the failings and shortcomings of his own counsel; and many a man has been made an anarchist by losing a meritorious case, the failure of which has been occasioned by the incompetence of his attorney, and by that alone.

In the courts themselves, the lack of confidence of the judge in his co-worker, the jury, is everywhere apparent. There can be little doubt that in many jurisdictions both judges and juries have in recent years radically departed from old, if not well-established, principles of law, or have at any rate shown a tendency to make special exceptions in personal injury cases. The juryman, for instance, is rare who will be found willing to recognize the doctrine of the assumption of risk. This doctrine is expressed in the rule that although the master, as a general principle, is held liable to his employee for dangers and defects in his tools, appliances, or machinery, the employee, if such defects are well) known to him, will be deemed to have assumed the risk of danger therefrom, and his principal will not be liable therefor. This rule is enforced by the courts. It is based upon the theory that the employee is a free agent, and should be held liable for the results of his free choice, or for dangers to which he has voluntarily exposed himself. The answer given by the ordinary jury is that the plaintiff is a poor man and is injured: to them this is sufficient. Perhaps, too, the more thoughtful reply is also made that in such cases there is no such thing as freedom of contract; that the struggle for existence is so keen that men must accept such work as they can obtain and are lucky to get it; and that, therefore, if the risk is assumed, it is not assumed voluntarily, but under the duress which comes from starvation and the necessity of supporting one's family.

The courts, on the other hand, see well-established rules of law being ignored. In the actions of the jury they see everywhere evidences of

sympathy, if not of passion and prejudice; they hear everywhere the charge being made by corporation lawyers that the majority of personal injury suits are without merit, and are based upon perjured evidence. They begin to think it their duty to step into the breach and to take a stand for the rights and interests of property. To use the apt language of Mr. Justice Brewer, of the Supreme Court of the United States, they feel imperatively called upon "to protect the minority against the unreasoning tyranny of the majority, the holders of property against the unwarranted attacks of those who have none."

No matter in what State, therefore, the tendency is steadily growing toward a stricter control of the jury by the courts. Under whatever pretext, whether of the doctrine of the co-employee, of the assumption of risk, of contributory negligence, or of prejudice and passion, there is a rapid increase in the number of reversals by the appellate courts of the verdicts of juries rendered in the courts below, and in the number of cases taken from the juries by the trial judges. The tendency is well illustrated by the doctrine of contributory negligence. At an early day in Illinois and Kansas, and perhaps in some other States, the rule of what might be termed comparative negligence prevailed-the rule that if a person is injured by the negligence of another he will not be debarred from redress in damages on account of the fact that his own negligence may have contributed to the accident, provided that his negligence is but small as compared with that of the defendant. This rule was abrogated later, and its place was taken by one to the effect that contributory negligence of any kind should preclude a recovery, but that of the fact of the existence or non-existence of such negligence the jury, and the jury alone, was to be the judge. To-day, the tendency is everywhere for the judges, following the directions of the appellate tribunals, to take the question of contributory negligence into their own hands; to find that certain acts, as a matter of law, constitute negligence, and to instruct the jury to find a verdict accordingly.

It cannot be fairly argued from this state of facts, however, as is so often attempted, that the judiciary has always shown a lack of sympathy for the servant and the poor man, and that the law of negligence merely exemplifies this attitude. As a matter of history the courts themselves created all the negligence law there is, and gave to the employee all the protection he now enjoys. It was the courts, not the parliaments or the legislatures, who first impressed the liability for negligence upon the master. The law pertaining to personal injuries as between master and servant is judge-made, not legislature-made. If the judges are now