Chapter XVI: Appendix: I (2)

This was the status of the question of yellow fever etiology when Dr. Reed and his associates commenced their investigations in Cuba during the summer of 1900. In a "Preliminary Note," read at the meeting of the American Public Health Association, October 22, 1900, the board gave a report of three cases of yellow fever which they believed to be direct results of mosquito inoculations. Two of these were members of the board, viz., Dr. Jesse W. Lazear and Dr. James Carroll, who voluntarily submitted themselves to the experiment. Dr. Carroll suffered a severe attack of the disease and recovered, but Dr. Lazear fell a victim to his enthusiasm and died in the cause of science and humanity. His death occurred on September 25, after an illness of six days' duration. About the same time nine other individuals who volunteered for the experiment were bitten by infected mosquitoes--i.e. by mosquitoes which had previously been allowed to fill themselves with blood from yellow fever cases--and in these cases the result was negative. In considering the experimental evidence thus far obtained, the attention of the members of the board was attracted by the fact that in the nine inoculations with a negative result "the time elapsing between the biting of the mosquito and the inoculation of the healthy subject varied in seven cases from two to eight days, and in the remaining two from ten to thirteen days, whereas in two of the three successful cases the mosquito had been kept for twelve days or longer." In the third case, that of Dr. Lazear, the facts are stated in the report of the board as follows:

Case 3. Dr. Jesse W. Lazear, Acting Assistant Surgeon U.S. Army, a member of this board, was bitten on August 16, 1900 (Case 3, Table III) by a mosquito (_Culex fasciatus_), which ten days previously had been contaminated by biting a very mild case of yellow fever (fifth day). No appreciable disturbance of health followed this inoculation.

On September 13, 1900 (forenoon), Dr. Lazear, while on a visit to Las Animas Hospital, and while collecting blood from yellow fever patients for study, was bitten by a _Culex_ mosquito (variety undetermined). As Dr. Lazear had been previously bitten by a contaminated insect without after effects, he deliberately allowed this particular mosquito, which had settled on the back of his hand, to remain until it had satisfied its hunger.

On the evening of September 18, five days after the bite, Dr. Lazear complained of feeling "out of sorts," and had a chill at 8 P.M.

On September 19, twelve o'clock noon, his temperature was 102.4°, pulse 112; his eyes were injected and his face suffused; at 3 P.M. temperature was 103.4°, pulse 104; 6 P.M., temperature 103.8° and pulse 106; albumin appeared in the urine. Jaundice appeared on the third day. The subsequent history of this case was one of progressive and fatal yellow fever, the death of our much-lamented colleague having occurred on the evening of September 25, 1900.

Evidently in this case the evidence is not satisfactory as to the fatal attack being the result of the bite by a mosquito "while on a visit to Las Animas Hospital," although Dr. Lazear himself was thoroughly convinced that this was the direct cause of his attack.

The inference by Dr. Reed and his associates, from the experiments thus far made, was that yellow fever may be; transmitted by mosquitoes of the genus _Culex_, but that in order to convey the infection to a nonimmune individual the insect must be kept for twelve days or longer after it has filled itself with blood from a yellow fever patient in the earlier stages of the disease. In other words, that a certain period of incubation is required in the body of the insect before the germ reaches its salivary glands, and consequently before it is able to inoculate any individual with the germs of yellow fever. This inference, based upon experimental data, received support from other observations, which have been repeatedly made, with reference to the introduction and spread of yellow fever in localities favorable to its propagation. When a case is imported to one of our southern seaport cities, from Havana, Vera Cruz, or some other endemic focus of the disease, an interval of two weeks or more occurs before secondary cases are developed as a result of such importation. In the light of our present knowledge this is readily understood. A certain number of mosquitoes having filled themselves with blood from this first case after an interval of twelve days or more bite nonimmune individuals living in the vicinity, and these individuals after a brief period of incubation fall sick with the disease; being bitten by other mosquitoes they serve to transmit the disease through the "intermediate host" to still others. Thus the epidemic extends, at first slowly from house to house, then more rapidly, as by geometrical progression.

It will be seen that the essential difference between the successful experiments of the board of which Dr. Reed is president and the unsuccessful experiments of Finlay consists of the length of time during which the mosquitoes were kept after filling themselves with blood from a yellow fever patient. In Finlay's experiments the interval was usually short,--from two to five or six days,--and it will be noted that in the experiments of Reed and his associates the result was invariably negative when the insect had been kept less than eight days (7 cases).

Having obtained what they considered satisfactory evidence that yellow fever is transmitted by mosquitoes, Dr. Reed and his associates proceeded to extend their experiments for the purpose of establishing the fact in such a positive manner that the medical profession and the scientific world generally might be convinced of the reliability of the experimental evidence upon which their conclusions were based. These conclusions, which have been fully justified by their subsequent experiments, were stated in their "Preliminary Note" as follows:

1. Bacillus icteroides (Sanarelli) stands in no causative relation
to yellow fever, but, when present, should be considered as a
secondary invader in this disease.

2. The mosquito serves as the intermediate host for the parasite of
yellow fever.

In "An Additional Note" read at the Pan-American Medical Congress held in Havana, Cuba, February 4,-7, 1901, a report is made of the further experiments made up to that date. In order that the absolute scientific value of these experiments may be fully appreciated I shall quote quite freely from this report with reference to the methods adopted for the purpose of excluding all sources of infection other than the mosquito inoculation:

In order to exercise perfect control over the movements of those individuals who were to be subjected to experimentation, and to avoid any other possible source of infection, a location was selected in an open and uncultivated field, about one mile from the town of Quemados, Cuba. Here an experimental sanitary station was established under the complete control of the senior member of this board. This station was named Camp Lazear, in honor of our late colleague, Dr. Jesse W. Lazear, Acting Assistant Surgeon U.S.A., who died of yellow fever, while courageously investigating the causation of this disease. The site selected was well drained, freely exposed to sunlight and winds, and from every point of view satisfactory for the purposes intended.

The personnel of this camp consisted of two medical officers, Dr. Roger P. Ames, Acting Assistant Surgeon U.S.A., an immune, in immediate charge; Dr. R. P. Cooke, Acting Assistant Surgeon U.S.A., nonimmune; one acting hospital steward, an immune; nine privates of the hospital corps, one of whom was immune, and one immune ambulance driver.

For the quartering of this detachment, and of such nonimmune individuals as should be received for experimentation, hospital tents, properly floored, were provided. These were placed at a distance of about twenty feet from each other, and numbered 1 to 7 respectively.

Camp Lazear was established November 20, 1900, and from this date was strictly quarantined, no one being permitted to leave or enter camp except the three immune members of the detachment and the members of the board. Supplies were drawn chiefly from Columbia Barracks, and for this purpose a conveyance under the control of an immune acting hospital steward, and having an immune driver, was used.

A few Spanish immigrants recently arrived at the port of Havana were received at Camp Lazear, from time to time, while these observations were being carried out. A nonimmune person, having once left the camp, was not permitted to return to it under any circumstances whatsoever.

The temperature and pulse of all nonimmune residents were carefully recorded three times a day. Under these circumstances any infected individual entering the camp could be promptly detected and removed. As a matter of fact, only two persons, not the subject of experimentation, developed any rise of temperature; one, a Spanish immigrant, with probable commencing pulmonary tuberculosis, who was discharged at the end of three days: and the other, a Spanish immigrant, who developed a temperature of 102.6° F. on the afternoon of his fourth day in camp. He was at once removed with his entire bedding and baggage and placed in the receiving ward at Columbia Barracks. His fever, which was marked by daily intermissions for three days, subsided upon the administration of cathartics and enemata. His attack was considered to be due to intestinal irritation. He was not permitted, however, to return to the camp.

No nonimmune resident was subjected to inoculation who had not passed in this camp the full period of incubation of yellow fever, with one exception, to be hereinafter mentioned.

For the purpose of experimentation subjects were selected as follows: From Tent No. 2, 2 nonimmunes, and from Tent No. 5, 3 nonimmunes. Later, 1 nonimmune in Tent No. 6 was also designated for inoculation.

It should be borne in mind that at the time when these inoculations were begun, there were only 12 nonimmune residents at Camp Lazear, and that 5 of those were selected for experiment, viz., 2 in Tent No. 2, and 3 in Tent No. 5. Of these we succeeded in infecting 4, viz., 1 in Tent No. 2. and 3 in Tent No. 5, each of whom developed an attack of yellow fever within the period of incubation of this disease. The one negative result, therefore, was in Case 2--Moran--inoculated with a mosquito on the fifteenth day after the insect had bitten a case of yellow-fever on the third day. Since this mosquito failed to infect Case 4, three days after it had bitten Moran, it follows that the result could not have been otherwise than negative in the latter case. We now know, as the result of our observations, that in the case of an insect kept at room temperature during the cool weather of November, fifteen or even eighteen days would, in all probability, be too short a time to render it capable of producing the disease.

As bearing upon the source of infection, we invite attention to the period of time during which the subjects had been kept under rigid quarantine, prior to successful inoculation, which was as follows: Case 1, fifteen days; Case 3, nine days; Case 4, nineteen days; Case 5, twenty-one days. We further desire to emphasize the fact that this epidemic of yellow fever, which affected 33.33 per cent of the nonimmune residents of Camp Lazear, did not concern the seven nonimmunes occupying Tents Nos, 1, 4, 6 and 7, _but was strictly limited to those individuals who had been bitten by contaminated mosquitoes._

Nothing could point more forcibly to the source of this infection than the order of the occurrence of events at this camp. The precision with which the infection of the individual followed the bite of the mosquito left nothing to be desired in order to fulfill the requirements of a scientific experiment.

In summing up their results at the conclusion of this report the following statement is made:

Out of a total or eighteen nonimmunes whom we have inoculated with contaminated mosquitoes, since we began this line of investigation, eight, or 44.4 per cent, have contracted yellow fever. If we exclude those individuals bitten by mosquitoes that had been kept less than twelve days after contamination, and which were therefore probably incapable of conveying the disease, we have to record eight positive and two negative results--80 per cent.

In a still later report (May, 1901) Dr. Reed says, "We have thus far succeeded in conveying yellow fever to twelve individuals by means of the bites of contaminated mosquitoes."

The nonimmune individuals experimented upon were all fully informed as to the nature of the experiment and its probable results and all gave their full consent. Fortunately no one of these brave volunteers in the cause of science and humanity suffered a fatal attack of the disease, although several were very ill and gave great anxiety to the members of the board, who fully appreciated the grave responsibility which rested upon them. That these experiments were justifiable under the circumstances mentioned is, I believe, beyond question. In no other way could the fact established have been demonstrated, and the knowledge gained is of inestimable value as a guide to reliable measures of prevention. Already it is being applied in Cuba, and without doubt innumerable lives will be saved as a result of these experiments showing the precise method by which yellow fever is contracted by those exposed in an "infected locality." Some of these volunteers were enlisted men of the United States Army and some were Spanish immigrants who had recently arrived in Cuba. When taken sick they received the best possible care, and after their recovery they had the advantage of being "immunes" who had nothing further to fear from the disease which has caused the death of thousands and tens of thousands of Spanish soldiers and immigrants who have come to Cuba under the orders of their government or to seek their fortunes.

The experiments already referred to show in the most conclusive manner that the blood of yellow fever patients contains the infectious agent, or germ, to which the disease is due, and this has been further demonstrated by direct inoculations from man to man. This experiment was made by Dr. Reed at "Camp Lazear" upon four individuals, who freely consented to it; and in three of the four a typical attack of yellow fever resulted from the blood injection. The blood was taken from a vein at the bend of the elbow on the first or second day of sickness and was injected subcutaneously into the four nonimmune individuals, the amount being in one positive case 2 cc, in one 1.5 cc, and in one O.5 cc. In the case attended with a negative result, a Spanish immigrant, a mosquito inoculation also proved to be without effect, and Dr. Reed supposes that this individual "probably possesses a natural immunity to yellow fever." Dr. Reed says with reference to these experiments:

It is important to note that in the three cases in which the injection of the blood brought about an attack of yellow fever, careful culture from the same blood, taken immediately after injection, failed to show the presence of Sanarelli's bacillus.

Having demonstrated the fact that yellow fever is propagated by mosquitoes, Dr. Reed and his associates have endeavored to ascertain whether it may also be propagated, as has been commonly supposed, by clothing, bedding, and other articles which have been in use by those sick with this disease. With reference to the experiments made for the solution of this question I cannot do better than to quote _in extensa_ from Dr. Reed's paper read at the Pan-American Medical Congress in Havana.

[This extract from Dr. Reed's paper describes in careful scientific detail the experiments which finally established the fact that the contagion came through mosquitoes, and in no other way. Into a small house, thoroughly air-proof, were brought bedclothes, clothing, and other articles which had been contaminated by yellow fever patients. Then for twenty days men who were nonimmune to the fever slept in this building, with no evil effects. This experiment was repeated several times. Then in another building similar, except that it was ventilated by mosquito-proof windows, and had been thoroughly disinfected, another volunteer was bitten by mosquitoes which had first bitten patients suffering with yellow fever; and he developed the disease. The last paragraph of the extract is as follows:]

"Thus at Camp Lazear, of seven nonimmunes whom we attempted to
infect by means of the bites of contaminated mosquitoes, we have
succeeded in conveying the disease to six, or 85.71 per cent. On the
other hand, of seven nonimmunes whom we tried to infect by means of
fomites [cloth and other material generally capable of carrying
germs] under particularly favorable circumstances, we did not
succeed in a single instance."

It is evident that in view of our present knowledge relating to the mode of transmission of yellow fever, the preventive measures which have heretofore been considered most important, that is, isolation of the sick, disinfection of clothing and bedding, and municipal sanitation, are either of no avail or of comparatively little value. It is true that yellow fever epidemics have resulted, as a rule, from the introduction to a previously healthy locality of one or more persons suffering from the disease. But we now know that its extension did not depend upon the direct contact of the sick with the nonimmune individuals and that isolation of the sick from such contact is unnecessary and without avail. On the other hand, complete isolation from the agent which is responsible for the propagation of the disease is all-important. In the absence of a yellow fever patient from which to draw blood the mosquito is harmless, and in the absence of the mosquito the yellow fever patient is harmless--as the experimental evidence now stands. Yellow fever epidemics are terminated by cold weather because the mosquitoes die or become torpid. The sanitary condition of our southern seaport cities is no better in winter than in summer, and if the infection attached to clothing and bedding it is difficult to understand why the first frosts of autumn should arrest the progress of an epidemic. But all this is explained now that the mode of transmission has been demonstrated.

Insanitary local conditions may, however, have a certain influence in the propagation of the disease, for it has been ascertained that the species of mosquito which serves as an intermediate host for the yellow fever germ may breed in cesspools and sewers, as well as in stagnant pools of water. If, therefore, the streets of a city are unpaved and ungraded and there are open spaces where water may accumulate in pools, as well as open cesspools to serve as breeding places for _Culex fasciatus_, the city will present conditions more favorable for the propagation of yellow fever than it would if well paved and drained and sewered.

The question whether yellow fever may be transmitted by any other species of mosquito than _Culex fasciatus_ has not been determined. Facts relating to the propagation of the disease indicate that the mosquito which serves as an intermediate host for the yellow fever germ has a somewhat restricted geographical range and is to be found especially upon the seacoast and the margins of rivers in the so-called "yellow fever zone." While occasional epidemics have occurred upon the southwest coast of the Iberian Peninsula, the disease, as an epidemic, is unknown elsewhere in Europe, and there is no evidence that it has ever invaded the great and populous continent of Asia. In Africa it is limited to the west coast. In North America, although it has occasionally prevailed as an epidemic in every one of our seaport cities as far north as Boston, and in the Mississippi Valley as far north as St. Louis, it has never established itself as an epidemic disease within the limits of the United States. Vera Cruz, and probably other points on the Gulf coast of Mexico, are, however, at the present time, endemic foci of the disease. In South America it has prevailed as an epidemic at all of the seaports on the Gulf and Atlantic coasts, as far south as Montevideo and Buenos Aires, and on the Pacific along the coast of Peru.

The region in which the disease has had the greatest and most frequent prevalence is bounded by the shores of the Gulf of Mexico, and includes the West India islands. Within the past few years yellow fever has been carried to the west coast of North America, and has prevailed as an epidemic as far north as the Mexican port of Guaymas, on the Gulf of California.

It must be supposed that _Culex fasciatus_ is only found where yellow fever prevails. The propagation of the disease depends upon the introduction of an infected individual to a locality where this mosquito is found, at a season of the year when it is active. Owing to the short period of incubation (five days or less), the brief duration of the disease and especially of the period during which the infectious agent (germ) is found in the blood, it is evident that ships sailing from infected ports, upon which cases of yellow fever develop, are not likely to introduce the disease to distant seaports. The continuance of an epidemic on shipboard, as on the land, must depend upon the presence of infected mosquitoes and of nonimmune individuals. Under these conditions we can readily understand why the disease should not be carried from the West Indies or from South America to the Mediterranean, to the east coast of Africa, or to Asiatic seaport cities. On the other hand, if the disease could be transmitted by infected clothing, bedding, etc., there seems no good reason why it should not have been carried to these distant localities long ago.

The restriction as regards altitude, however, probably depends upon the fact that the mosquito which serves as an intermediate host is a coast species, which does not live in elevated regions. It is a well-established fact that yellow fever has never prevailed in the City of Mexico, although the city has constant and unrestricted intercourse with the infected seaport, Vera Cruz. Persons who have been exposed in Vera Cruz during the epidemic season frequently fall sick after their arrival in the City of Mexico, but they do not communicate the disease to those in attendance upon them or to others in the vicinity. Evidently some factor essential for the propagation of the disease is absent, although we have the sick man, his clothing and bedding, and the insanitary local conditions which have been supposed to constitute an essential factor. I am not aware that any observations have been made with reference to the presence or absence of _Culex fasciatus_ in high altitudes, but the inference that it is not to be found in such localities as the City of Mexico seems justified by the established facts already referred to.

As pointed out by Hirsch, "the disease stops short at many points in the West Indies where the climate is still in the highest degree tropical." In the Antilles it has rarely appeared at a height of more than seven hundred feet. In the United States the most elevated locality in which the disease has prevailed as an epidemic is Chattanooga, Tennessee, which is seven hundred and forty-five feet above sea level.

It will be remembered that the malarial fevers are contracted as a result of inoculation by mosquitoes of the genus _Anopheles_, and that the malarial parasite has been demonstrated not only in the blood of those suffering from malarial infection, but also in the stomach and salivary glands of the mosquito. If the yellow fever parasite resembled that of the malarial fevers, it would no doubt have been discovered long ago. But, as a matter of fact, this parasite, which we now know is present in the blood of those sick with the disease, has thus far eluded all researches. Possibly it is ultramicroscopic. However this may be, it is not the only infectious disease germ which remains to be discovered. There is no doubt a living germ in vaccine lymph and in the virus from smallpox pustules, but it has not been demonstrated by the microscope. The same is true of foot and mouth disease and of infectious pleuropneumonia of cattle, although we know that a living element of some kind is present in the infectious material by which these diseases are propagated. In Texas fever, of cattle, which is transmitted by infected ticks, the parasite is very minute, but by proper staining methods and a good microscope it may be detected in the interior of the red blood corpuscles. Drs. Reed and Carroll are at present engaged in a search for the yellow fever germ in the blood and in the bodies of infected mosquitoes. What success may attend their efforts remains to be seen, but at all events the fundamental facts have been demonstrated that this germ is present in the blood and that the disease is transmitted by a certain species of mosquito--_Culex fasciatus_.

[At the end of the article General Sternberg reproduces the general orders issued to the army in Cuba with directions for the precautions to be taken against the disease.]

THE WORKMAN'S COMPENSATION ACT[75]

This is a good example of the high quality of argumentative writing which is being turned out by daily and weekly journals in great quantities throughout the year. This article, being from a weekly journal, is longer and more searching than the editorial in a daily paper, and to some extent partakes of the nature of an essay. It is notable for the thoroughness of the analysis of the question, for the careful review of the history of the case, and for the precise statement of the points at issue. There is little space for the presentation of evidence, though the specific statement of facts and the quotations from authorities, so far as they go, serve as evidence.

We purpose in this article to give to our readers an interpretation of the recent decision of the New York Court of Appeals declaring that the Workman's Compensation Act is unconstitutional. We regard this decision as of very great importance, because, if the Court has correctly interpreted the Constitution of the United States, that document prevents America from adopting an industrial reform which has been adopted as just and necessary by practically the entire civilized world. We do not believe that the interpretation of the Court is correct. It is, in our opinion, in conflict alike with the progress of civilization, the spirit of democracy, the principles of social justice, and the analogies and tendencies of law. And we believe that this unconscious attempt to fasten upon the workingman an unjust and intolerable burden from which all other civilized nations, with one exception, have relieved him, will ultimately prove as futile as was the conscious and deliberate attempt of the United States Supreme Court, under the lead of Chief Justice Taney, to halt the movement for the emancipation of the slaves.

In the earlier stages of industrial development, when industry was unorganized, machinery hardly existed, and labor was an individual handicraft, the courts naturally assumed that accidents occurring to a workman were probably due to his own negligence.

If he were mowing in a field and cut himself with his scythe, if he were digging a ditch and sprained his ankle, if he were cutting down a tree and it fell upon him and broke his leg, he could recover from his employer only on proof that his employer was at fault. Nor could he recover if the accident were due to the carelessness of a fellow workman. There was always a natural presumption that he could better guard against such carelessness than could the probably absent employer. If he were turning a grindstone and his awkward fellow workman so held the scythe as to cut him, if he were in the forest and his fellow workman gave no notice of the falling tree, it was natural to presume that the carelessness was shared between the two, and the law would neither attribute blame to the employer nor levy the damage upon him when he was not blameworthy.

But the organization of labor and the creation of elaborate machinery has destroyed this presumption of the common sense, and therefore in all civilized countries has destroyed this presumption of law. When a railway train runs off the track because of a misplaced switch or a defective rail, there is no presumption that the engineer was careless or could have guarded against the carelessness of the switch tender or of the manufacturer of the rail. When a fire breaks out in a room where scores of shirt-waist makers are confined at their work and a hundred and forty of them are burned to death, there is no presumption that the impossibility of their escape through narrow passageways and a locked door was due to their carelessness, or that they were to blame because the tables at which they were working were wood, not metal, or that they could have prevented the careless fellow workman from throwing his cigarette down in the inflammable material which surrounded them. In fact, only a very limited number of modern accidents are due to the carelessness of the injured party; probably a somewhat larger number are due to the carelessness of some other employee; while a very considerable proportion are incidents of the trade and due to no definite culpability which it is possible to trace home either to the employer or the employed.

The Christian nations of the world have, with singular unanimity, recognized this change, and have changed their laws to meet the new conditions. The change which they have made was indicated to them by their maritime laws, which in this respect have been alike in all civilized nations and from a very early period. An accident occurring to a sailor on shipboard has always been regarded as an accident to the ship; and the ship has always been required to bear the burden of his care and keep and cure. This right to be cared for does not rest on any assumption that the master of the ship has been negligent, nor is the seaman deprived of his right to care and keep and cure by proof that the accident was due in part, or even altogether, to his negligence. He is not debarred from recovery by proof of his carelessness; he is not given larger damages upon proof of the negligence of the master. His right to be cared for rests, says Mr. Justice Story, upon the fact that "seamen are in some sort co-adventurers upon the voyage." Modern jurisprudence throughout Christendom recognizes that under modern industrial conditions the workman in the railway, the mine, and the factory is a co-adventurer in the enterprise, and that the hazards incident to his employment should be borne, not by the individual, but by the industry. This principle is now recognized and incorporated in their legal, systems by every country in Europe (including Russia but not Turkey) with the single exception of Switzerland.[76]

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."

From such a provision for the protection of the fundamental rights of person and property it is a far cry to the conclusion that the people cannot remedy the injustice which inflicts all the consequences of accidents which occur in extrahazardous trades upon the individual who, in practicing that trade, happens to be subjected to the peril. Common sense, as well as frequent decisions of the courts, sustain Daniel Webster's definition of the scope of the Constitutional provision embodying in our law this provision of the Great Charter: "The meaning is that every citizen shall hold his life, liberty, and property and immunities under the protection of general rules which govern society." That society can never make new rules for the better protection of life, liberty, and property and immunities, is a doctrine as repugnant to reason as it is to social progress. It is equally repugnant to the principle of interpretation laid down by the Supreme Court of the United States: "The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors."[77] And it seems never even to have occurred to English law makers that the Workman's Compensation Act is inconsistent with this provision of their Great Charter--a charter which is as much a part of the British constitution as the Fifth and Tenth Amendments are of ours. In the English Constitution, as in the American, the principle is carefully defined in writing. The only difference is that in England the Parliament is the final judge of its meaning; in the United States that final judge is the Supreme Court of the United States.

At least it ought to be. But the New York Court of Appeals does not allow that it is the final authority. In this particular case it is not, for no appeal lies by the plaintiff in this case from the state to the national court. But an appeal does lie by the public. _The Outlook_ takes such an appeal. And it declares without hesitation that the decision of the New York Court of Appeals is in conflict, not only with the trend of judicial decisions in that Court, but also with its very explicit statement of the fundamental principles to be applied in interpreting the Constitution.

We have already noted the fact that maritime law regards a seaman as a co-adventurer with the shipowner, and therefore makes the ship liable for his care, keep, and cure in case any accident occurs to him, even though it be produced by his own fault. We now add that the Supreme Court of the United States has decided that such a law does not take the shipowner's property without due process of law. That, says the Court of Appeals, is different, for "the contract and services of seamen are exceptional in character ... When he is sick or injured he is entitled to be cared for at the expense of the ship, and for the failure of the master to perform his duty in this regard the ship or the owner is liable." No doubt there is a difference between a seaman on a ship and a factory hand in a factory. Very probably that difference ought to weigh with the representatives of the people in determining what difference there should be in their respective treatment. But if making a ship liable for accidents happening to a seaman does not take the shipowner's property without due process of law, then rendering a factory liable for accidents happening to a factory hand does not lake the factory owner's property without due process of law. The Constitution of the United States is precisely the same on sea as on land; but to the Constitution of the United Slates the Court of Appeals gives one meaning on shipboard and another meaning in the town.

The right of the legislature to impose new responsibilities upon property is not confined by the United States Supreme Court to the sea. It is equally sustained upon the land. The State of Oklahoma provided for an assessment on all banks in the State in order to create a fund for the purpose of guaranteeing the depositors in all banks in the State. The Noble State Bank brought suit against the State to prevent it from collecting this assessment, on the ground that it was taking property without due process of law. The Supreme Court, without a dissenting opinion, held that the act was constitutional, on two grounds: first, because "it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose is a private use"; and, second, because "it may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." A similar case coming before the Court from the State of Kansas was decided with the same unanimity by the Court at the same time.[78]

This definition of Constitutional law by the unanimous opinion of the Supreme Court of the United Slates, if accepted, clearly determines the constitutionality of the Workman's Compensation Act. That this Act "is sanctioned by usage and held by the prevailing morality and strong and preponderant opinion to be greatly and immediately necessary to the public welfare" is proved by the fact that it is demanded alike by employer and employee, that it has been approved by the general public, that it is apparently regarded by the Court of Appeals itself as a reform much to be desired, and that it has been adopted by every civilized country in Europe except Switzerland. The New York Court of Appeals can find only one escape from this declaration of principle by the highest tribunal in the land, in these two cases, namely, a repudiation of the authority of that tribunal in these cases: "We cannot recognize them as controlling our construction of our Constitution."

In this review of the decision of the New York Court of Appeals we have passed by without comment some extraordinary statements which should not be passed by in any complete review--the statement that "practically all of these [European] countries are so-called constitutional monarchies in which, as in England, there is no written constitution," whereas, in fact, practically all of the European nations have written constitutions; and the statement that the Workman's Compensation Act "does nothing to conserve the health, safety, or morals of the employee," whereas, in fact, it is aimed and purposed to accomplish all three results, and was urged in the English House of Lords by Lord Salisbury specifically on the ground that "to my mind the great attraction of this bill is that I believe it will turn out a great machinery for the saving of human life."

But we have deliberately neglected all minor details in an endeavor to put before our lay readers a true interpretation, and what we hope they will generally believe to be a just criticism, of this decision of the highest court of the Empire State. In that decision, in our opinion, the Court has disregarded all considerations of social justice and public policy, has set itself against the conscience and judgment of the civilized world, and in its forced interpretation of the Constitution has disregarded alike the history of the Constitution's origin and of its judicial interpretation by the highest court in the land.