Chapter VII: Appendix: II

ILLUSTRATIONS OF ANALYSIS TO DETERMINE THE ISSUES OF THE QUESTION

The two specimens that immediately follow are analyses of the same question by students of the same university. The first is a selection from the speech made by Mr. Raymond S. Pruitt in the Towle Debate of Northwestern University Law School in 1911. The second is the introduction to the speech made by Mr. Charles Watson of the Northwestern University Law School in the 1911 debate with the Law School of the University of Southern California. Students should observe how the two speakers determine somewhat different issues.

_Resolved_, That in actions against an employer for death or injury of an employee sustained in the course of an industrial employment the fellow-servant rule and the rule of the assumption of risk as defined and interpreted by the common law, should be abolished.

Mr. Pruitt, speaking for the affirmative:

The question which we discuss tonight is partly economic and partly
legal. By that I mean that viewing it from the standpoint of legal
liability, we possibly can agree with the gentlemen of the Negative
that the employer should respond in damages to his injured employee,
only when the injury has been caused by the employer's own fault.
But, on the other hand, viewing the same problem from an economic
standpoint, you cannot deny, that, when through no fault of his own,
a worker is injured in the course of an industrial employment, that
industry should compensate him for the loss.

Here then is the issue--the world-old-problem--established
principles of law in conflict with changing social and economic
conditions; and, as history shows, there can in such cases be but
one solution. The decision of the court, the statute of the
legislature, yes, even the constitution of the nation, must in turn
yield to the march of progress and adapt itself to changing
conditions until once more it shall reflect the sense of public
justice in its own time. Hence, I say that in our discussion this
evening, there can be no confusion of issues. The Affirmative,
according to the wording of the question, are to advocate a change
in our common law, while the Negative in duty bound are to oppose
the proposition for change, and to defend as the Negative always
defend, the order of things as they are.

The Affirmative are to advocate such a change, the abolition of the
common-law defenses of the employer. For the purposes of this
debate, it is immaterial to us whether this change is brought about
by a simple extension of the employer's liability, or whether it is
accompanied, as in many of our states, by a system of workman's
compensation. Likewise, it is a consideration extraneous to the
issues of this debate, whether the employer shoulder this risk
himself, whether he insure it in a private insurance company, or
whether he be compelled to insure it in a company managed by the
state. At all events, and under any of these plans, the proposition
of the Affirmative will be maintained, the employer will be deprived
of his defenses at common law, and the employee will recover his
damages regardless of questions of fault.

Assuming then the full burden of proof, the Affirmative propose to
demonstrate that the assumption of risk and the fellow-servant rule
as defined and interpreted by the common law should be abolished,
first, because whatever reasons may have justified these doctrines
in years gone by they have no application to industrial conditions
in our day; and, secondly, because the abolition of these common law
defenses will but place the burden of industrial loss, as in justice
it should be placed, upon the ultimate consumer of the product of
the industry.

Mr. Watson, speaking for the Negative:

The proposed abolition of these two common-law defenses, like every
change of law or any suggested reform, is brought to our attention
by certain existing evils. The advocates of this reform have a
definite proposition in mind and that proposition is definitely and
clearly stated in the question. It is a question in which people in
every walk of life are concerned. Since it is of such widespread
interest, let us lift it from a plane of mere debating tactics, in
which a question of this kind is so often placed, and where a great
deal of time is spent in arguing what the Affirmative or the
Negative may stand for according to the interpretation of the
question, let us lift it from that plane, and consider it as
practical men and women who are interested in the outcome of this
great problem. It is, then, in its larger sense, a legal question
and must be considered from the standpoints of justice and of
expediency.

It is not enough for the Affirmative to point out evils that exist
under these two common-law rules, for there is bound to be some evil
in the administration of all law; so they must further show that
these evils which they have named are inherent in these two laws,
and that the proposed change will remedy the existing evils. Now the
Negative maintain that the evils complained of are not inherent in
these laws, and we believe that the Affirmative plan is not the
proper solution of the problem.

I will show you that these common-law rules are founded on
principles of justice and that their removal would be unjust to the
employer; second that it would discriminate against the smaller
tradesmen, and third that the proposed remedy does not strike at the
root of the evil, since it would affect only a small percentage of
industrial accidents.

CARL SCHURZ ON GENERAL AMNESTY

(A bill being before Congress proposing to restore to leading Southerners many of the privileges which had been denied them following the war, Mr. Schurz determined the issue as follows:)

_Mr. President_: When this debate commenced before the holidays, I
refrained from taking part in it, and from expressing my opinions on
some of the provisions of the bill now before us; hoping as I did
that the measure could be passed without difficulty, and that a
great many of those who now labor under political disabilities would
be immediately relieved. This expectation was disappointed. An
amendment to the bill was adopted. It will have to go back to the
House of Representatives now unless by some parliamentary means we
get rid of the amendment, and there being no inducement left to
waive what criticism we might feel inclined to bring forward, we may
consider the whole question open.

I beg leave to say that I am in favor of general, or, as this word
is considered more expressive, universal amnesty, believing, as I
do, that the reasons make it desirable that the amnesty should be
universal. The senator from South Carolina has already given notice
that he will move to strike out the exceptions from the operation of
this act of relief for which the bill provides. If he had not
declared his intention to that effect, I would do so. In any event,
whenever he offers his amendment I shall most heartily support it.

In the course of this debate we have listened to some senators, as
they conjured up before our eyes once more all the horrors of the
Rebellion, the wickedness of its conception, how terrible its
incidents were, and how harrowing its consequences. Sir, I admit it
all; I will not combat the correctness of the picture; and yet if I
differ with the gentlemen who drew it, it is because, had the
conception of the Rebellion been still more wicked, had its
incidents been still more terrible, its consequences still more
harrowing, I could not permit myself to forget that in dealing with
the question now before us we have to deal not alone with the past,
but with the present and future of this republic.

What do we want to accomplish as good citizens and patriots? Do we
mean only to inflict upon the late rebels pain, degradation,
mortification, annoyance, for its own sake; to torture their
feelings without any ulterior purpose? Certainly such a purpose
could not by any possibility animate high-minded men. I presume,
therefore, that those who still favor the continuance of some of the
disabilities imposed by the Fourteenth Amendment do so because they
have some higher object of public usefulness in view, an object of
public usefulness sufficient to justify, in their minds at least,
the denial of rights to others which we ourselves enjoy.

What can those objects of public usefulness be? Let me assume that,
if we differ as to the means to be employed, we are agreed as to the
supreme end and aim to be reached. That end and aim of our endeavors
can be no other than to secure to all the States the blessings of
good and free government and the highest degree of prosperity and
well-being they can attain, and to revive in all citizens of this
republic that love for the Union and its institutions, and that
inspiring consciousness of a common nationality, which, after all,
must bind all Americans together.

What are the best means for the attainment of that end? This, Sir,
as I conceive it, is the only legitimate question we have to decide.