in recent legislation and in recent discussion to insist, not that the debtor keep faith in all cases even though it ruin him and his family, but that the creditor must take a risk also, either along with or even in some cases instead of the debtor. Primitive law, acting on the principle of buying off the desire for revenge, said Ames in 1908, "asked simply, 'did the defendant do the physical act which damaged the plaintiff.' The law of today, except in certain cases based upon public policy, asks the further question, 'was the act blameworthy.' The ethical standard of reasonable conduct has replaced the unmoral standard of acting at one's peril.” 144 But the ethical standard of which he wrote, which came into the law in the period of infusion of morals, was an individualist ethical standard. Today there is a strong and growing tendency to revive the idea of liability without fault, not only in the form of wide responsibility for agencies employed, but in placing upon an enterprise the burden of repairing injuries without fault of him who conducts it, which are incident to the undertaking. There is a strong and growing tendency, where there is no blame on either side, to ask, in view of the exigencies of social justice who can best bear the loss, and hence to shift the loss by creating liability where there has been no fault. The whole matter of workmen's compensation and employer's liability, as dealt with in modern legislation, illustrates this.145 The basis of such legislation is the social interest in the full moral and social life of the individual in classes that are less able to bear the burden of injuries incident to their tasks. Again, it used to be laid down, and the doctrine came from the Roman law, that certain things, such as running water, were res communes, that is, no one could own them, but the use of them belonged to or could be appropriated by certain individuals, and under the laws as to compulsory insurance and claims for maintenance are exempt from seizure. Code of Civil Procedure, § 850. 144 Law and Morals, 22 HARV. L. REV. 97, 99. 145 Wambaugh, Workmen's Compensation Acts, 25 HARV. L. REV. 129; Opinion of the Justices, 209 Mass. 607; State v. Clausen, 65 Wash. 156; Borgnis v. Falk, 147 Wis. 327. See Ives v. South Buffalo R. Co., 201 N. Y. 271. Another illustration may be seen in the movement in England to abolish the defense of compulsory pilotage in cases where a collision is caused by the fault of a pilot carried under compulsion of law. See Law Times, Feb. 15, 1913, vol. 134, p. 392. that certain other things were res nullius, that is, they belonged to no one until some one reduced them to his possession, and then they belonged to him. Wild animals were of the latter class. Recently a strong tendency has arisen to regard running water and wild game as res publicae; to hold that they are owned by the state, or better, that they are assets of society which are not capable of private appropriation or ownership except under regulations that protect the general social interest. 146 It is too early to say just how far this tendency will go. But it is changing the whole water law of the western states.147 It means that in a crowded world the social interest in the use and conservation of natural media has become more important than individual interests of substance. Finally recent legislation, and to some extent recent judicial decision, have changed the attitude of the law with respect to dependent members of the household. Courts no longer make the natural rights of parents with respect to children the chief basis of their decisions. The individual interest of parents, which used to be almost the one thing regarded, has come to be almost the last thing regarded as compared with the interest of society. The interest of the child is now thought of rather as the interest of society in the full development of the child. In other words, here also social interests are now chiefly regarded.148 It is now in order to consider the end of law as developed in juristic thought. This subject is reserved for a subsequent paper. Roscoe Pound. HARVARD LAW SCHOOL. 146 See the statutes in Wiel, Water Rights, 3 ed., I, §§ 6, 120; Ex parte Bailey, 155 Cal. 472; Geer v. Connecticut, 161 U. S. 519. 147 See the Water Code for Washington (1913), §§ 1, 2. Compare also recent decisions as to flood water. Wiel, Water Rights, 3 ed., I, § 347; Gallatin v. Corning I. Co. (Cal., 1912), 126 Pac. 864. 148 Mack, The Juvenile Court, 23 HARV. L. REV. 104; Breckinridge and Abbott, The Delinquent Child and the Home, chaps. 2, II. For another instance of the change of front which has taken place in this respect, compare the older and newer cases as to constitutionality of drainage and reclamation laws and the like. на SEQUEL TO WORKMEN'S COMPENSATION ACTS.1 THE object of this paper is to give notice of an impending question of great importance; not to give an answer to the question, but to show how and why it arises at the present time. There is a movement now going on in this country for the enactment of legislation based upon the principle of the English Workmen's Compensation Act.2 This legislation is founded largely upon a theory inconsistent with the fundamental principle of the modern common law of torts. As to a considerable number of the accidents covered by some of the recent statutes, the results reached under the statute would be absolutely irreconcilable with results reached at common law in cases outside the scope of the statute. This incongruity must inevitably provoke discussion as to the intrinsic correctness of the modern common law of torts; and is likely to lead, either to a movement in favor of repealing the statutes, or to a movement in favor of making radical changes in the common law. 1 The Workmen's Compensation laws enacted in American States "all differ materially in detail and not infrequently in substance;" but they all "may be said to be pointed in the same general direction." 6 Maine Law Review, 283. "The wording of each is different from any of the others. . . . There is a great diversity as to those who come within the provisions of the various acts, the amounts paid and the manner of administering the statutes, while all the acts, in principle, accomplish the same result." Bradbury's Workmen's Compensation, Introduction, XI. In foreign legislation on this topic, there are various systems. "The details of these systems vary in the different countries, but one principle underlies them all and gives a certain degree of unity to all such laws, however much they may differ in form or in method of operation." Report of Massachusetts Commission on Compensa⚫tion for Industrial Accidents, A. D. 1912, p. 55. 2 See the initial English statute of 1897, 60 & 61 Vict., ch. 37; and the more sweeping statute of 1906, 6 Edward 7, ch. 58. "The substitution of the words 'employer' and 'workman,' for the words familiar to the common law, 'master' and 'servant,' serves to illustrate rather a social than a legal change." . . . "It may be interesting to note the transition from the legislative use of one phrase to the other. The Master and Servant Act, 1867 (30 & 31 Vict., ch. 14), is the last of a long series, as may be seen from the schedule, where the term master and servant is employed. The Employers and Workmen Act, 1875, (38 & 39 Vict., ch. 90), is the starting point of the new nomenclature." Beven, Law of Employers' Liability and Workmen's Compensation, 3 ed., p. 5, and p. 6, note (a). In the present movement for the enactment of such legislation, the discussion in this country has turned largely on two questions: 1. Whether justice to workmen requires the passage of such a statute? 2. Whether a proposed statute would conflict with the constitution of a state or of the United States? Assume, for present purposes, that the first question is answered in the affirmative and the second question in the negative.3 If a proposed statute is enacted and held valid, then we predict that legislators and judges will immediately be confronted by a third question: 3. Does not justice require a further change in the law, so as to put certain persons other than workmen upon an equality with workmen? How, and why, does this question arise? The Workmen's Compensation Act provides for compensation (on a limited scale) by an employer to his workmen when they are damaged in the conduct of the business by pure accident; i. e., If any serious difficulties exist under the present constitutions, they are likely to be removed by constitutional amendments. The New York Act of June 25, 1910, was held unconstitutional in Ives v. South Buffalo R. Co., 1911, 201 N. Y. 271. Thereafter the following constitutional amendment was adopted; having been passed by two successive legislatures in 1912 and 1913, and having been approved by vote of the people at the state election in November, 1913. See New York Laws, 1913, vol. 3, pp. 2220, 2226; amendment to article one of the constitution by adding a new section, 19. "Section 19. Nothing contained in the constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise, either directly or through a state or other system of insurance or otherwise, of compensation for injuries to employees or for death of employees resulting from such injuries without regard to fault as a cause thereof, except where the injury is occasioned by the wilful intention of the injured employee to bring about' the injury or death of himself or another, or where the injury results solely from the intoxication of the injured employee while on duty; or for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable sum; provided that all moneys paid by an employer to his employees or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer." without fault on the part of any one. But if an outsider, or a paying customer of the business, is damaged by pure accident in the conduct of the business, they have generally no remedy at all against the owner of the business. If no further change is made in the law (either by legislation or judicial decision), workmen will constitute, in effect, a specially protected class, and great incongruities will exist. Witness the following examples: Example 1. Collision on highway between trolley car and A.'s wagon driven by its owner. Collision not due to fault of any one. Three persons suffer damage: the owner of the wagon, a paying passenger on the car, and the motorman.5 The motorman recovers, under the statute, partial compensation from the owner of the trolley line, his employer. Neither the wagon owner, nor the passenger, can recover against the owner of the trolley line." ♦ The English Act of 1906 "extended the principle of compensation to cover certain industrial diseases." It is believed that, in the case of a trolley line on the surface of the highway, accidents damaging to outsiders and to passengers are more frequent than accidents damaging to employees. The following figures have been furnished by the counsel of a large trolley road. The first column gives the percentage of claims made before a Compensation Act became effective, and the second column gives the percentage after that time. Percentage of the claims made by employees Of course the whole number of passengers carried far exceeds the whole number of employees. But an employee is generally exposed to the perils of the traffic more frequently and more continuously than a passenger. The passenger is carried once or twice a day; while the employee is likely to be on the trains a large part of each day. See Buckley, L. J., in Pierce v. Provident Clothing Co., L. R. [1911[ 1 K. B. 997, 1003. Compare 25 HARV. L. REV. 533-535 Some part of the tracks of the trolley road above referred to run in subways, and another part is elevated. As to both of these, accidents to outsiders are rare as compared with that part of the road where the tracks run on the surface of the highway. As to the common-law duty and liability of a Street Railway Company to passengers, see I Nellis on Street Railways, 2 ed., §§ 274, 275; 4 Elliott on R. R., 2 ed., § 1402; Newberry v. Bristol, etc. Tramway Co., Court of Appeal, Dec. 20, 1912, 99 Times Law Reports, 177; Raymond v. Portland R. Co., 1905, 100 Me. 529, 532-535; Pitcher v. Old Colony Street R. Co., 1907, 196 Mass. 69. As to the common-law duty and liability of a street railway company to persons |