limiting the employer's liability, it is largely because rightly or wrongly they have come to believe that there is abroad a conspiracy against capital and employers, the chief parties to which are designing and unscrupulous lawyers.

Justifiable, however, as these tendencies may be, there can be no doubt of their unpopularity. An injured man can rarely be brought to see the justice of a verdict which is returned against him by a jury. Much less can he be induced to acquiesce when a Supreme Court judge, whom he has not seen and who knows only of the case as it is presented to him on the printed record, is responsible for his overthrow. As things now are, it is perhaps not an exaggeration to say that every personal injury case is a factor in the increase of social discontent.

There has been told of a Supreme Court judge of one of our Western States a story which well illustrates this point, and which, whether true or not, whether commendable or not, has been widely disseminated, and has no doubt had a more or less injurious effect upon the public mind. The court of the judge in question had recently announced the rule of law known as "the duty to stop and look and listen." That is, it had stated that it was the duty of every man, before he approached a railroad track, to stop, to listen for approaching trains, and to look in both directions, and that unless this were done the doctrine of contributory negligence would be construed against him by the court as a matter of law, and he could not recover damages even though run over by the negligence of the railroad company. The judge in question was on a hunting trip, and was being driven by a country lawyer to a place where game was supposed to abound. On the way the party approached a railroad crossing; and, much to the surprise of the judge, the lawyer, although the view was clear and unobstructed, and no train was anywhere in sight, jumped from the buggy, ran forward, lay upon the track, put his ears to the rails, and then standing up shaded his eyes carefully and looked long and intently in each direction. He then returned to the buggy and, without saying a word, took up the lines and drove over the crossing. "Why," asked the judge, "did you do that?" "Simply," replied the lawyer, "to show your honor what a d- fool a man has to make of himself in order to conform to the decisions of the Supreme Court of this State." There can be no question of the harmfulness of stories of this nature and of the disrespect which they create for the decisions of the courts.

In saying this I am not passing upon the wisdom or lack of wisdom of the doctrine of contributory negligence or upon the relative merits of

trial by judge and trial by jury. I am simply trying to pave the way to an inquiry whether we do not expect too much of our courts and juries and burden them too much. It would be well for us to consider whether, in this day of vast business enterprises and feverish industrial activity, when jurymen grudge the time that they have to spend in public service and even witnesses are unwilling to leave their occupation and testify, some means may not be devised to lessen this pressure and to settle amicably or eliminate entirely questions of liability, the decision of which by the courts, no matter in whose favor, must always result in dissatisfaction and lack of confidence.

Few persons would entertain seriously the proposition that employers should by statute be held liable in damages for all injuries received by their servants while in their employment, irrespective of the question whether the negligence of the employee contributed thereto. Every reason of public policy would be against such measures; although it is true that many corporation lawyers, disgusted with the findings of the juries, have been heard to doubt whether there is any use in the doctrines of assumed risk and of contributory negligence, if the juries everywhere disregard the law on these points. Such an alteration in the law would set too great a premium on carelessness on the part of the employee, to say nothing of the tremendous burden it would place on the employer. Indeed, there is not the remotest possibility that any such statute could or would be sustained by the American courts when confronted with the safeguards to property interests furnished by the State and Federal Constitutions. It is barely possible that the doctrine of assumption of risk might be abrogated by statute or by a modification by the courts of their own judge-made law on the subject, on the theory that there is no such thing as freedom of contract in industrial affairs. That the doctrine of contributory negligence, however, would ever be waived by the courts, except in the case of young children and other incapables, is not to be entertained for a moment. Equally untenable is the idea that the employer either would or should be totally relieved from liability to his servants for the results of his own negligence, as for instance for the failure to furnish them with reasonably safe appliances and machinery, or to warn them of hidden dangers and defects. So necessary, indeed, is this liability deemed as a means of enforcing a proper regard and care for life and health, that the courts have again and again declared that contracts between employer and employee, which waive this liability, are invalid and against public policy, even though entered into with apparent willingness on the part of the servant.

The solution, then, if any, must come from a plan of compulsory insurance and choice of remedies, rather than from any modification of the common-law rules and principles. Such a system, it would seem, must be the result of an agreement between employer and employee, or must be made compulsory by the employer as a prerequisite to employment; for the prejudice against paternalism in government is as yet too strong in the United States to allow us to go to the extremes in governmental control to which Germany and other European nations have gone. After all, the only purposes to be subserved are great care on the part of both the employer and the employee, and the removal of the uncertainty and burdens of litigation. In most instances these purposes could be apparently as well subserved by individual as by State initiative.

The plan suggested is not a new one, but has been already adopted in one form or another by a number of corporations in the United States. Its essential features are as follows: Every employer, as a prerequisite for employment, is to compel the employee to insure himself against death and accident for a certain amount, say $2,000, either with a company in which the employer is interested or with one which is independent; the employer, if necessary, paying part of the premiums. In such instances the policy is to contain a provision that in case an attempt is made to recover damages of the employer under his common-law liability for negligence, no recovery can be had on the insurance policy in question. This method gives the employee a choice of remedies, but takes away neither. It secures to the injured man compensation for his injuries in the form of insurance money, in cases where his employer would not be liable under the common law and where, therefore, no recovery could be had against him as in cases of contributory negligence. It does not, however, release the employer from the liability to which he is legally subject under the common law. It is of paramount importance to the community, as well as to the injured man himself, that such a person should have some means of support. Every cripple who is unable to recover damages from his employer becomes of necessity a burden on the community. Accordingly, the corporations or trusts that would institute such a system and provide for that support would become agencies of great public good. The courts have time and again held that an employer cannot by any means contract against liability for his own negligence. But in such cases, that is, in cases where the negligence of the employer is beyond doubt and the insurance comparatively small, the employee could and would resort to

his common-law remedy against his master. In all other cases, however-cases of doubt, of contributory negligence, and of assumption of risk an election would, of course, be made to hold the insurance company liable on its policy, as all that would be necessary to entitle the beneficiary to recover would be actual proof of the occurrence of the accident without regard to the defences which the employer might interpose if he were sued.

This plan would put an end to the temptation of manufacturing a case against the employer, and of forcing him to make some sort of a settlement on the theory that it would be cheaper to pay a few hundred dollars than to waste a thousand in defending an action. It would not put an end to personal injury litigation. It would, however, put an end to the bolstering up of doubtful cases, that is, to that part of the litigation which brings discredit upon the community, upon the administration of justice, and upon the legal profession. That the employer could well afford to bear a part of the cost of the premiums in such cases there can be but little doubt, since the system would save him the cost of defending many unwarranted actions. On the other hand, no great hardship would be suffered by the employee if he were required to insure against accidents for which his employer could not be blamed, and for which, without such insurance, there could be no recovery. The validity of such contracts or policies has been frequently upheld by the courts.

ANDREW A. BRUCE.

WHY THE CHINESE SHOULD BE EXCLUDED.

A TRAVELLER from Europe once reminded Americans that liberty meant nothing if it did not mean individual liberty; that a country could sever the political bonds attaching it to another and still have a tyranny at home. Something of the same kind can be said of prosperity. Prosperity certainly means nothing if it does not mean individual prosperity. Politicians may point to the huge production of recent years in the United States; but if this has to be divided among a still more rapidly increasing population, there is not, in the true sense, prosperity at all. A happier, not a larger, population is what is desired. Not only is the product of industry divided among a larger number as population increases under the present social order, but it is divided more and more unequally. Competition for employment among laborers, as their<< numbers increase, will have a tendency to lower wages steadily; and the same increase of population, by increasing the demand for food, will make necessary the cultivation of our poorer lands, with the result that, as this food must be raised at a greater cost, landlords will be enabled to raise their rent for the more favored lands. Accordingly, under the present régime, the only classes which will be benefited by an increase of numbers will be the landlord and the capitalist classes the capitalist profiting by lower wages, the landlord by a higher rent charge. The lower wages and increased cost of food will thus leave the masses in a much worse position than formerly. Such must be the tendency of an increase of population as long as the laborer remains a mere receiver of wages. He can never participate to an equitable extent in the general progress of society.

The limitation of population has been regarded by almost all economists since Adam Smith as an absolute condition precedent to the improvement of the laboring class. The most difficult problem has been to educate the masses and to raise their standard of living so that they will see and feel the folly of thoughtlessly increasing their numbers. Most attempts at the improvement of their condition have proved but a temporary benefit, the increase in their numbers having always rapidly