ments-create equitable, rather than legal rights, which require for their enforcement a procedure unknown to the common law, and that, therefore, all questions arising under the act may be finally settled by a judge sitting in a court of equity without a jury.

These are the principal constitutional objections to the compensation laws. The right of all persons to personal liberty, private property, and trial by jury are fundamental constitutional guarantees, and compensation laws must be made to conform to them. A few years ago the guarantee of personal liberty and private property would have been considered fatal to compensation. The courts are gradually taking a broader view of the state's power to legislate for the public welfare consistently with these constitutional guarantees to the individual, and are constantly discovering "constitutional loopholes" by which social legislation having the support of public opinion may be fitted into our legal and constitutional systems. If existing social and industrial conditions resulting from industrial accidents afford a reasonable ground for the extension of employers' liability to all accidents, except those due to the wilful fault of the injured employee, then such legislation will be upheld as a valid exercise of the state's police power. The constitutionality of the law depends upon its reasonableness, and this depends upon the existence of the conditions which are said to require its enactment.

The constitutional right to trial by jury—while it must be admitted that it is a serious obstacle to a compensation law which would abolish all existing employers' lability law, substitute therefor the provisions of the compensation act, and provide that all disputes be settled without recourse to jury trials-is nevertheless consistent with a law which secures many if not all of the substantial advantages of compensation.

The Wisconsin bill attempts to avoid the constitutional difficulties by making the enforcement of the compensation plan dependent upon its acceptance by employer and employee. By this method the act is made to rest, not upon the state's power to regulate, but upon the contract, express or implied, of the parties affected.

Where the constitutional difficulties arise not from fundamental principles of constitutional limitation, but from specific provisions in state constitutions in the nature of legislative enactments -as, for example, the New York provision that the legislature shall not limit the amount recoverable in actions for damages for

injuries resulting in death—it may be necessary, and should not be difficult, to amend the constitution to permit the enactment of a compensation law.

Some of these constitutional questions will be settled by the decision in the case of Ives vs. South Buffalo Railway Company which will be argued before the New York Court of Appeals early in January, 1911. It may be that the decision in that case, which involves the validity of the New York compulsory act, will be announced by the court in time to enable 1911 legisatures in other states to profit by the New York experience before determining upon the precise form and contents of their compensation act.

The decision of the United States Supreme Court in the case now pending before it, involving the constitutionality of the federal employers' liability law of 1908, will throw some light on the question of the power of Congress to pass a compensation law applicable to employees engaged in interstate commerce.

In conclusion, it may be said that at the close of the year 1910 there is general agreement among those who have considered compensation for industrial accidents that some form of compensation act is now desirable and demanded in this country; that compensation bills prepared by special legislative commissions will be introduced at the 1911 sessions of the legislatures of Massachusetts, New Jersey, Ohio, Wisconsin, and Minnesota; that the coöperation of the several state commissions, and the efforts of the Conference of Uniform State Law Commissioners, are preparing the way for uniform state compensation laws in the chief industrial states; and that the constitutional difficulties are no longer regarded as insurmountable, but only as requiring careful investigation of the conditions which are said to justify the law, and careful statement of its provisions.

The study of conditions is also required for the determination of the mooted questions of a fair rate and period of compensation. The progress of the compensation movement in the future will depend upon the extent to which, by scientific study of conditions, the details of the law are intelligently determined with fairness to all parties, and the reasonableness of the law as an exercise of the state's police power is legally established. The drafters of constitutional and effective compensation laws must prepare themselves by careful study of the law and the facts, and they must see that the provisions of the law are couched in language of the utmost precision.

VOLUNTARY INDEMNITY FOR INJURED WORKMEN

F. C. SCHWEDTMAN

Let me preface my remarks with an apology to you and to the great subject upon which I am to speak. A month ago your worthy Secretary advised me that I was to have fifteen minutes for a discussion of my subject. I told him that no one could do the subject justice in that length of time, whereupon he extended my time allowance. I promised faithfully to speak not a second longer than twenty-five minutes, and I am in the habit of living up to my promises. My time is just long enough to discuss and illustrate a few fundamental principles. I cannot possibly convey to you more than twenty-five per cent of what I should like to say, and what I ought to say in justice to the subject assigned to me for discussion.

My subject is "Voluntary Indemnity for Injured Workmen." Let me begin my argument with the startling statement that in my opinion voluntary indemnity alone will never settle the problem of providing equitable compensation for the incapacitated members of our industrial army. But let me add to this statement that I feel equally sure that compulsory action alone will never settle the problem.

Only by compulsion can the reactionary member of society be made to do his share of the common duty. Only by voluntary action will the patriotic progressive individual do the best that is in him or her. Only by compulsory legislation can a national system be established which will provide the necessary regulations for prevention of accidents and minimum relief for disabled workers or their dependents. Only by permissive legislation and voluntary action can the best individual effort be encouraged and the maximum benefits secured.

I need hardly say that when I speak of "progressives", "reactionaries", fair and unfair, I speak of all the nation and not of a class. I speak of legislators and lawyers, employers and wage workers, insurance men and doctors. We are wasting time when we seek to blame one set or class of people for the shortcomings of our present scheme. The large majority of all people is fairminded and wants to do the right thing. I could show you tonight systems of relief in some of our members' shops, which are fully

as liberal in dealing with their injured, sick, or superannuated workers as the very best European examples; and in several cases such systems cover establishments with five to twenty-five thousand employees. It is the system, and not the men, that should be criticised.

In order to improve our present system and change it to a point which is in keeping with our great country, our institutions and our people, we need the patient and hearty coöperation of the good people of all classes. This is not the time and place to enter into a discussion of employers' liability laws or systems. The question is no longer, "Should we establish an accident compensation system?" The question is, "What should be the basis and principles of our future compensation system?" The National Association of Manufacturers, which I have the honor of representing, has put itself officially on record as disfavoring any kind of employers' liability scheme, because such schemes are "unsatisfactory, wasteful, slow in operation, and antagonistic to harmonious relations between employers and wage workers." In place of such a system the National Association of Manufacturers recommended, at its last annual meeting, an "equitable, voluntary, mutually contributory indemnity system, automatically providing relief for victims of industrial accidents and their dependents.' Special stress is placed, officially, upon accident prevention and its greater importance even than compensation.

Since this official declaration was adopted, a four months' inquiry into European systems has been completed by Mr. Emery, our legal counsel, and myself, and our report has been placed before the officers of the National Association of Manufacturers and a large body of fine men, who, as members of a special advisory board, are giving us the benefit of their judgment and experience.

I shall read some extracts from our latest findings. But before proceeding to do this, let me assure you that our European investigation was not conducted with the expectation of adopting, as a whole, the system of any one of the European countries. We shall never Anglicize, Germanize, or Gallicize our institutions nor our people. We can, however, greatly profit by foreign experience with a common problem. The world owes a debt to those nations which, with prudent boldness, have deliberately undertaken vast social experiments for the benefit of their people. It is not only our privilege, it is our duty, to benefit by the experience of such

nations. And now for the findings of our Committee. Our Committee finds:

I

That limited compensation for personal injury received in the course of employment is assured in substantially all European countries; that it rests upon the acknowledgement as a basic fact that injury by accident in employment arises not only from negligence, but from the risk inherent in the use of modern implements of production; that the economic effect of the increasing percentage of unavoidable accidents should primarily rest upon the employments in which they are incurred, and not upon the individual who receives them, through a system of compensation which, providing him and those dependent upon him with substantial relief, likewise operates to minimize preventable accidents by every precaution-the pecuniary burden of the system thus passing as part of the cost of production to society, for whose ultimate benefit it has occurred. The fault ceases to be the basis of recovery, except where it jeopardizes the safety of fellow employees, or assumes the form of wilful self-injury or criminal negligence. This principle is and should be applied to all employments, save in exceptional instances where difficulties of application merely defer its extension.

That all countries adopting the compensatory principle are not equally successful in applying it, but the better results of European experience demonstrate that the principle is socially beneficial, economically expedient, and industrially advantageous, and if applied in conformity with our form of government, mode of thought, and condition of labor, would confer undoubted benefits.

II

That the advantages perceived in the compensation system were secured and are maintained only in accompaniment with a sound, vigorous, and scientific system of accident prevention, stimulated by public and private coöperation, with suitable provision in all cases of personal injury for prompt and efficient first aid medical treatment.

III

That the compensatory system has been successfully applied in Europe only when based upon the careful investigation of trained minds, predicting their conclusions upon ascertained facts. We believe intelligent legislation must be based upon deliberate in