Page images
PDF
EPUB

recommended by some legal authorities-- lies the great difficulty, that States, desirous of reducing their armies and at the same time improving them, who in other words would institute another organization, would be unjustly embarrassed. The economical argument that the reduction of the army would occasion an injurious effect upon the labour-market from the fact that there would be a superabundance of labourers has been amply refuted by Bastiat.

The only argument which the committee could not meet is, therefore, the lack of confidence in the sincerity of the fellow-contractors. For an instant the hope was entertained that the forcible words, employed by the Dutch Delegate, den Beer Poortugael, would have given a favourable turn to the course of affairs. But, alas, those words have been printed in the reports but not upon the hearts of the Governments. This universal question has been referred to a subsequent conference. By mutual agreement the Governments are not yet to be compelled to lighten the burden of militarism. It is to be hoped that an uprising of the people will not enforce it before that subsequent conference mcets.

At the moment that these brief notes are going to press,

* From the speech referred to, which related to the question whether the States could not agree upon the manufacture of no new fire-arms within a certain term of years, we may quote the following :

Ce serait faire injure aux parties contractantes que de supposer qu'elles pourraient avoir l'intention de ne pas tenir leur engagement.”

Messieurs, il en est des nations comme des individus. François I., vaincu et fait prisonnier à Pavie par Charles Quint, écrivit à sa mère du château de Pizzighettone ces mots remarquables : “Madame, tout est perdu, fors l'honneur." - Il n'en restait pas moins le grand Roi, pouvant regagner tout et l'ayant regagné, parce que l'honneur lui restait. Mais autre chose serait de forsaire à son serment ou à un engagement accepté, car:

“L'honneur est une île escarpée et sans bords :

On n'y peut plus rentrer dès qu'on en est dehors.” Je suis donc convaincu, Messieurs, que pour être certain que les Etats ne se soustrairont ni à l'esprit ni à la lettre de la convention, il n'y a pas de meilleur contrôleur que l'honneur des nations.

Pensons-y !

the Conference is not yet closed. It seems, therefore, better that the review of the other portions of the debates should be postponed to a following issue. To my regret it may be asserted that the importance of those considerations to a very great extent are confined to the decisions which will be taken upon the Geneva Convention of the year 1864, and that of Brussels of 1876. As to International Arbitration, the results appear to be very insignificant, and this is probably to be attributed principally to the attitude of the German Government. Meanwhile, although nothing more will be accomplished than the formulating of measures for the exercise of the right to arbitrate, which has always existed, the fact that this subject has been debated upon is a happy circumstance. And we may regard it as a certainty that the more frequently such international congresses are held, the more the interests of Peace, to which end every one ought to strive, will be served.

S. JULES ENTHOVEN.

(To be continued.)

XI.-EMPLOYERS' LIABILITY AND WORKMEN'S

COMPENSATION.*

THE
'HE Workmen's Compensation Act has now been in

force for just twelve months, and it is accordingly possible to judge of its legal effect and its result as a practical scheme.

A review of its legal as well as its practical aspect has been rendered the more easy by two books, which have

* The Workmen's Compensation Act, 1897, with Notes. By W. ADDINGTON Willis. Sixth Edition. London : Butterworth & Co., 1899.

Law of Employers' Liability and Workmen's Compensation. By THOMAS BEVEN. Second Edition. London: Waterlow Brothers & Layton, Ltd., 1899.

[ocr errors]

recently been published, by well-known authors. Mr. Willis's work has reached its sixth edition, and any publication by the learned author of Negligence in Law must command attention ; and, as Mr. Beven says in his preface, "experience shows that the Act, and the procedure under it, are replete with technicalities, and professional assistance is next to essential in elucidating them.” But though this is true, one may reasonably ask whether those who have had to interpret and administer the Act have raised the "barrier of subtleties and dubious word-spinning,” which Mr. Beven would have us believe.

In the first half of his book, Mr. Beven deals with the employer's liability as it existed previous to the passing of the Act. And he deals with such liability by means of enunciating a series of propositions which he then proceeds to discuss in an exhaustive and lucid manner; and though by a number of cross references he makes the whole book connected, it is upon the latter half where he deals with the Workmen's Compensation Act that interest will centre. Mr. Willis, on the other hand, deals exclusively with the Act of 1897

When the Act was first passed, the legal world for the most part was of opinion that a new legal principle had been created, and that for the first time in the history of English jurisprudence a tortious liability had arisen which had not for its basis any negligence or other tort on the part of the defendant, but merely rested on the Statute which brought it into being. The Employers' Liability Act, 1880, had introduced a number of minute and empirical exceptions into the law of Torts, and, together with a series of decisions upon it, had left that law in a singularly intricate and clumsy state.

The result was that both the employer and the workmen were put to what was deemed to be unnecessary expense to obtain a determination of their respective rights.

The present Act, by taking a great stride, sought to clear matters up and lessen ich costs and expenses, and it was thought that its stride had been so great that it must either be considered to rest on an entirely new legal principle, or else must be considered to form an incongruous offshoot to the law of Torts; but it may be doubted whether the truer view is not that the principle of the enactment must be classified under the law of Contract, and that what the Legislature had intended to say was that in every contract of hiring between an employer and his workmen, in those trades to which the Act relates, an implied condition existed on the part of the employer that he would compensate the workmen for any injury the workmen received during the performance of the contract.

Nor, with submission, ought it to cause any great qualms to precise students of jurisprudence that under statutory authority such an implied condition is imported into a contract of service in a way not so very dissimilar to that in which the common law in certain contracts grants a lien to one party in the subject matter of the contract.

To imply a condition such as that stated above into every contract of hiring was undoubtedly the wish of those who framed the Act; and had the employers and the workmen or those who represented them been able to accept unreservedly this principle, it would have been possible to have framed a short and simple enactment, and the result would, it is submitted, have proved far more beneficial and satisfactory both to the employers and the workmen.

Still, under whatever classification in the English system of jurisprudence the Act may come to be placed, the intention and desire of our legislators was to frame a scheme by which an injured workman could be adequately compensated with as little expenditure as possible upon law costs and expenses by either employer or workman.

The costs which have to be incurred before a judgment can

be given in any judicial matter very largely depend upon the number of facts which are in issue. The main fact which was in issue in cases before the passing of the Act was negligence. It was thought, therefore, that if the compensation of a workman was not made to rest upon “negligence,” the costs usually incurred in determining this issue would be done away with. In fact, the idea obviously was that the findings of fact in a dispute under the Act would be so unimportant that it was possible and more suitable to dispense with a jury and designate the hearing and determination of the dispute "an Arbitration."

It is now seen, however, that in such arbitrations there are very important questions of fact to be determined.

Two of the more important of these questions are occasioned by the following words :

(1) Arising out of and in the course of the employment. (2) Serious and wilful misconduct.

Mr. Beven deals with the meaning and effect of both these sets of words in a very full and able manner, but it may be doubted whether he points out sufficiently clearly the very possible defence they, either severally or jointly, will in a large number of cases afford to the employer.

It is true, since no negligence quà negligence can be considered, that the defence of contributory negligence is under the Act lost to the employer, or, as Mr. Beven says, the effect of the second set of words is "to exclude the defence of contributory negligence, except in those cases where the contributory negligence rises to the height of serious and wilful misconduct” (p. 222).

Mr. Willis also is right when he says (p. 24), “ Ignorance will negative misconduct;” but, on the other hand, goes rather too far when he adds that “negligence, however gross, will not constitute it."

The defence of contributory negligence is one that is frequently put forward in actions under the Act of 1880; but

« PreviousContinue »