The Making of Arguments

by J. H. Gardiner

The justice and importance of this reform have been recognized by such statesmen as the President of the United States and his predecessor in office, by such lawyers as Elihu Root, by workmen who desire some better insurance against accident than is furnished them by a right to sue their employers, by employers who desire to be protected from vexatious lawsuits and the peril of verdicts for great sums, and by about half a dozen states, including Kansas, New Jersey, Massachusetts, and New York, all of which have passed Workmen's Compensation Acts. Such an act, shifting the responsibility for the risks which are incident to the trade in organized industry from the individual to the organization, the New York Court of Appeals declares no state in the Union has authority to enact, because the Constitution of the United States forbids its enactment. The Court recognizes the need for a change in the Law. "We desire," says the Court, "to present no purely technical or hypercritical obstacles to any plan for the beneficent reformation of a branch of our jurisprudence in which, it may be conceded, reform is a consummation devoutly to be wished." It presents forcibly, appreciatively, and apparently with entire approbation, the arguments which have brought about this reform in other lands: "There can be no doubt as to the theory of this law. It is based upon the proposition that the inherent risks of an employment should, in justice, be placed upon the shoulders of the employer, who can protect himself against loss by insurance, and by such an addition to the price of his wares as to cast the burden ultimately upon the consumer; that indemnity to an injured employee should be as much a charge upon the business as the cost of replacing or repairing disabled or defective machinery, appliances, or tools; that under our present system the loss falls immediately upon the employee, who is almost invariably unable to bear it, and ultimately upon the community, which is taxed for the support of the indigent; and that our present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism between employer and employee which it is for the interest of the state to remedy."

To these considerations the Court suggests no reply, and upon them it offers no criticism. On the contrary, it in terms concedes "the strength of this appeal to recognized and widely prevalent sentiment." It declares that "no word of praise could overstate the industry and Intelligence of the Commission" which prepared the New York law, and it apparently agrees with the conclusion of the Commission, based on "a most voluminous array of statistical tables, extracts from the works of philosophical writers, and the industrial laws of many countries"—the conclusion that "our own system of dealing with industrial accidents is economically, morally, and legally unsound." But all these considerations of public policy, social justice, and world-wide conviction are set aside "as subordinate to the primary question whether they can be molded into statutes without infringing upon the letter or spirit of our own written Constitution." The countries which have adopted this desirable reform, it is said, "are so-called constitutional monarchies in which, as in England, there is no written constitution, and the Parliament or lawmaking body is supreme. In our country the Federal and State Constitutions are the charters which demark the extent and the limitation of legislative power."

In brief: The change in the law is just: it is demanded by the change which has taken place in our industrial system; it is all but universally desired; the experience and the conscience of the civilized world call for it; but America is powerless to make it under her present Constitution. Other countries can make it because they are monarchies: America cannot make it because she is free.

The clause in the Constitution which, in the opinion of the Court of Appeals, prohibits the legislature from making this wise and just reform in our law is the clause which provides that "no person shall be ... deprived of life, liberty, or property without due process of law"—a prohibition which occurs twice in our Federal Constitution (Amendments V and XIV), and is to be found in many, very probably in most, State Constitutions. We believe that the Court of Appeals, in its contention that this clause in our Constitution prohibits this just and necessary reform in our industrial laws, is sustained neither by the spirit nor by the letter of this clause in the Constitution, neither by the history of its origin and significance nor by the course of judicial interpretation which has been given to it by the United Slates Supreme Court.

Let the reader stop a moment here and reflect upon the principle involved in the law enacted in other civilized countries and proposed in ours. It is not that an employer should be mulcted in damages when he has been guilty of no fault. It is not that he should be compelled to pay for his carelessness without an opportunity to prove to the court that he has not been careless. It is that accidents occurring in the course of organized industry should be held to have occurred, not to the individual, but to the industry.

"In everything within the sphere of human activity," says the Court of Appeals, "the risks which are inherent and unavoidable must fall upon those who are exposed to them." The jurists of all the civilized countries of Europe agree that in modern organized industries it is the industry, not the individual, that is exposed to the accidents. The law applies to the factory hand for the future the principle heretofore applied to the seaman in maritime law. The factory hand is henceforth to be regarded as a "co-adventurer" with the employer in the industry.

Nor is "due process of law" denied by the Workman's Compensation Act. No damages can be recovered from the employer against his consent without a suit at law. The statute in terms provides that "any question which shall arise under this act shall be determined either by agreement or by arbitration as provided in the Code of Civil Procedure, or by an action at law as herein provided." And what is provided is that, if the employer fail to make compensation as provided by the Act, the injured party or his guardian or executor may sue for the amount. The law does not deny the employer his day in court. But it redefines the question for the court to decide. It has not to decide whether the employer is guilty of fault. His liability does not depend on his fault. The court has simply to decide whether the accident occurred in the due course of the business, and, if the employer chooses to raise the question, whether it was "caused in whole or in part by the serious and willful misconduct of the workman." If not, the workman is entitled to recover, and the amount which he is entitled to recover is fixed by the statute. The question, then, is this:

Does a law which, for accidents in certain carefully defined and especially dangerous employments, transfers the liability from the individual to the organization, and which carefully preserves the right of the employer to submit any questions which arise under the law to the courts for adjudication, deprive the employer of his property without due process of law? The Court of Appeals of New York State affirms that it does. The Outlook affirms that it does not.

To state this question appears to us to answer it. Certainly there is nothing in the Workman's Compensation Act which violates the letter of the Constitution. It does not in terms take the property of the employer without due process of law. How any one can find in the act a violation of the spirit of the Constitution we find it difficult to conceive. And that difficulty is enhanced, not relieved, by a careful study of the opinions of the Court. For in those opinions it is assumed that on its face the law is unconstitutional, and the Court devotes all its intellectual energies to an attempt to show that the authorities cited in opposition are exceptional. That the law and the Constitution are not inconsistent is, however, established both by a consideration of the object and intent of the Constitutional provision and by judicial decisions interpreting it. To these two considerations we now direct the attention of the reader.

The provision in the federal Constitution that "no person shall be ... deprived of life, liberty, or property, except by due process of law" (Fifth Amendment), and the provision, "nor shall any state deprive any person of life, liberty, or property without due process of law" (Fourteenth Amendment), are derived from the Great Charter wrested from King John by the Barons in 1215. "No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." This is perhaps the most important of those general clauses in the Great Charter which, says Hallam in his "History of the Middle Ages," "protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation." Hume gives some intimation of the abuses that led to this provision: merchants had been subjected to arbitrary tolls and impositions; the property of the dying had been seized and their lawful heirs dispossessed; officers of the Crown had levied on horses and carts in time of peace for their own or the public service. Green, in his "History of the English People," gives the picture of John's despotism and of the growing spirit of liberty in the English common people with greater detail The King's exactions drove the Barons into alliance with the people. "Illegal exactions, the seizure of their castles, the preference shown to foreigners, were small provocations compared with his attacks on the honor of their wives and daughters." The demand of the common people to substitute due process of law for wager by battle, and to be secure in their lives, their liberties, and their property from acts of lawless and irresponsible power, the Barons made their own, and by the same act claimed for others what they claimed for themselves. "The under tenants were protected against all exactions of their lords in precisely the same terms as they were protected against the lawless exactions of the Crown."