that of the New York court. The latter has declared unconstitutional several laws which would undoubtedly be held good in Massachusetts. It was unable to see any provisions relating to health in a statute forbidding the manufacturing of cigars in tenement houses and held the law invalid (Matter of Jacobs, 98 N. Y. 98). It declared a law unconstitutional which prohibited the employment of women after 9 P.M. and before 6 A.M. (People v. Williams, 189 N. Y. 131). A similar law is in force in Massachusetts and is undoubtedly valid (Acts of 1909, chapter 514, section 51; see Comm. v. Riley, 210 Mass. 387). It has been construed by the Massachusetts Attorney-General (1 Op. A. G. (Mass.) 209). The New York court denied the validity of a statute limiting the hours of labor on public work (People v. Orange County Road Cons. Co., 175 N. Y. 84). A similar law was upheld by the Supreme Court of the United States (Atkin v. Kansas, 191 U. S. 207; see also 2 Op. A. G. (Mass.) 497, and Opinion of the Justices, 208 Mass. 619).

In People v. Williams, above cited, Earl, J., said:

The tendency of Legislatures, in the form of regulatory measures, to interfere with the lawful pursuits of citizens is becoming a marked one in this country, and it behooves the courts, firmly and fearlessly, to interpose the barriers of their judgments, when invoked to protect against legislative acts, plainly, transcending the powers conferred by the Constitution upon the legislative body (189 N. Y., at p. 135).

This is a false view of the province of the court (Thayer, Legal Essays, p. 28), and is entirely different from the views of the Supreme Judicial Court of Massachusetts already cited.

The New York court has adopted an erroneous view of its function, and in the instances above cited it has unduly restricted the power of the Legislature to pass laws relating to the hours of labor and similar measures. Public attention has been drawn to this fact recently by one of the foremost men of the country in his public speeches, which have been heard by large numbers of persons and read by many thousands more.

The New York court, taking this extended view of its powers, attacked the problem before it in a very narrow spirit. The decision rests on the hypothesis that at the common law a person could not be made liable for the result of an accident unless some

fault could be attributed to him. This is a mistake. There are many instances in the common law of liability without fault: a husband is liable at common law for the torts of his wife (Austin v. Wilson, 4 Cush. 273; see McCarty v. De Best, 120 Mass. 89). A ship is liable for the cure of a sailor (the Osceola, 189 U. S. 158). A person who causes a nuisance is liable. Many instances of this might be cited, but the bell-ringing case will be sufficient (Davis v. Sawyer, 133 Mass. 289; see Sawyer v. Davis, 136 Mass. 239). A landowner is bound at his peril to keep filthy water from percolating into his neighbor's well (Ball v. Nye, 99 Mass. 582). Shipley v. Fifty Associates (101 Mass. 251; 106 Mass. 194) is an instance of the rule laid down by Mr. Justice Blackburn in his celebrated opinion in Fletcher v. Rylands (L. R. 1 Ex. 265, 279) that "the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril." In Massachusetts an action for deceit will lie, without proof of fraudulent intent, if the defendant makes a statement of fact as of his own knowledge (Chatham Furnace Co. v. Moffatt, 147 Mass. 403; Weeks v. Currier, 172 Mass. 53). The doctrine is carried so far that evidence that the defendant believed the statement is excluded (Adams v. Collins, 196 Mass. 422). This is an extreme instance of liability without fault. A principal is liable for the fraudulent representation of his agent though made without his knowledge (Haskell v. Starbird, 152 Mass. 117). A person is liable for the spread of fire (Hart v. Western Railroad, 13 Met. 99; St. Louis & San Francisco R'y. v. Mathews, 165 U. S. 1).

The responsibilities of common carriers and innkeepers are also familiar instances, and many others might be given of liability without fault. The last two cases are well-known examples of responsibility developed by the courts on grounds of public expediency. A master is liable for injury caused by his servant to a stranger, under the doctrine of respondeat superior (Howe v. Newmarch, 12 Allen, 49). The courts themselves have developed this doctrine without the aid of the Legislature. Why may not the Legislature adopt the same principles with relation to the whole subject of master and servant? It is said that this is taking property without due process of law. But if a man in

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Massachusetts may be held liable in an action of deceit without fault, why may not the Legislature say that he shall be liable to his servant without fault? A law, the details of which have been evolved by the courts on their own ideas of public policy, may surely be changed and enlarged by the Legislature on grounds of public policy as to which, as Mr. Justice Hughes says, it is the arbiter (Chicago, B. & Quincy R.R. Co. v. McGuire, 219 U. S. 549, 565).

The Supreme Judicial Court has always held that the relation between master and servant is a subject peculiarly within the province of the Legislature (Comm. v. Hamilton Mfg. Co., 120 Mass. 383; Opinion of the Justices, 163 Mass. 589; Comm. v. Riley, 210 Mass. 387). In the first case Lord, J., speaking of a statute restricting the hours of labor of women says:

There can be no doubt that such legislation may be maintained either as a health or police regulation, if it were necessary to resort to either of those sources for power. This principle has been so frequently recognized in this Commonwealth that reference to the decisions is unnecessary.

He says further that it is a matter "so clearly within the power of the Legislature, that it becomes unnecessary to inquire whether it is a matter of grievance of which this defendant has the right to complain."

The only case where the court has decided that the Legislature has exceeded its constitutional power in this respect is Commonwealth v. Perry (155 Mass. 117). This case is explained in the Opinion of the Justices, above cited, as a legislative attempt to compel payment for poor work. The statute has been amended. and is now on the statute book (Acts of 1909, chapter 514, section 114. See Comm. v. Lancaster Mills, Banker and Tradesman, July 6, 1912, p. 36).

It has been said that the relation of husband and wife is within the protection of the law when other relations are not. There are, however, numerous instances of the relation of master and servant being regulated by statutes, many of which have been upheld by the courts. A very eminent authority has said that in England the relation between employer and employee in regard

to compensation for accidents has become a matter of status and not of contract (Dicey, Law and Opinion in England, p. 283).

The admiralty rules as to the liability of a vessel for the cure of its sailors is said to be an exception, and is distinguished by the New York court (Ives case, 201 N. Y., at p. 311). The Legislature would seem to have power to say that in modern industry an employee may be treated like a sailor, as a "co-adventurer with the master," as the rule of maritime law is expressed by the New York court (Ives case, ib.).

It is not the province of the court, however much it may disapprove the modern theory of legislation, to say that the Legislature cannot discard all theories of individualism and provide for paternalism. Mr. Justice Holmes, in his dissenting opinion in Lochner v. New York (198 U. S. 45, 75), says:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. . . . But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

There are numerous instances of this on the statute books. Chapter 514 of the Acts of 1909, codifying the Massachusetts labor laws, contains many such statutes.

But even if the New York court be correct in its hypothesis that liability was not in general imposed by the common law without fault (see Holmes, Common Law, chapter 3), it forgets that one of the great powers of the Legislature is to change the rules of the common law where they are not conducive to justice and the public welfare (Munn v. Illinois, 94 U. S. 113, 134; Hurtado v. California, 110 U. S. 516, 529; Holden v. Hardy, 169 U. S. 366, 385; Brown v. New Jersey, 175 U. S. 172, 175; Twining v. New Jersey, 211 U. S. 78, 101; Second Employers' Liability Cases, 223 U. S. 1, 50; Mass. Const., chap. VI, art. VI; Jacquins v. Comm., 9 Cush. 279, 282; Comm. v. Williams, 6 Gray, 1, 3; Opin

ion of the Justices, 163 Mass. 589; Tyler v. Court of Registration, 175 Mass. 71).

In view of the many instances already cited, where liability was imposed at common law without fault, it cannot be said that the Legislature is doing an arbitrary thing in changing the law in this way. The attitude of the 'Massachusetts court towards legislation of this character is such that it may very well be predicted that the court would uphold a compulsory law imposing liability on employers. In such a law there would have to be some provision for a trial by jury, as by Article XV of Part I of the Massachusetts Constitution this cannot be taken away. The proposed Federal law provides for such a trial, and it would be sufficient if it were allowed on appeal from the decision of the Industrial Accident Board (Hapgood v. Doherty, 8 Gray, 373; O'Loughlin v. Bird, 128 Mass. 600).

There remains the question whether the law could require the employers to insure. If the Legislature has the power to impose a liability on the master for the injuries incidental to the industry it is for the reason that the public welfare requires that the persons injured shall not be allowed to become dependent on public or private charity, and that the cost of this may be placed on the industry. If, in the opinion of the Legislature, it is necessary to go further and provide that every employer must protect his employees by insurance, as otherwise the danger of their becoming thus dependent would be too great, it would seem to be competent for it to do so. This is not saying that the Legislature might constitutionally require all employers to insure in a company operated by the State. Whatever may be thought of the advisability of such a scheme, it is doubtful whether this could be done in Massachusetts without change in the Constitution (Lowell v. Boston, 111 Mass. 454; Opinion of the Justices, 155 Mass. 598; Opinion of the Justices, 204 Mass. 607; Opinion of the Justices, 211 Mass. 624).

If a compulsory law were upheld by the Massachusetts court there would then be an opportunity for determining, by appeal to the Supreme Court of the United States, whether such a law were in conflict with the provisions of the Constitution of the United States. It is the opinion of the Federal Commission that a compulsory law would be upheld by that court. The commission is