ously confused a rule of negligence with a principle of tort liability, and accorded to the employer a vested right in the former. As the law of the land has reference not to the mere rules of law in particular cases, but to the fundamental principles of liability, it is not true that, at the time our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. Liability for personal injuries sustained by another is not predicated fundamentally upon fault or negligence, but rather upon the question whether the individual to be charged with liability is such a factor in the chain of causation as that he may be deemed to have had a responsible connection with the injury; and if the instrumentality through which the injury is caused be conducted primarily for the benefit of the individual, he has that responsible connection with the injury, and it is not arbitrary, but reasonable and just, if he be made to indemnify the injured person. Numerous instances of liability at common law illustrate that the principle of tort liability is related to these considerations, rather than to the concept of fault on the part of the individual charged. Take, for instance, the liability of a shipowner for the care and maintenance of disabled seamen. The rule of personal liability embodied in the maxim qui facit per alium facit per se rests not upon a notion of actual fault on the part of the individual charged with liability, but upon the reasonable imputation of fault arising out of his responsible connection with the instrumentality through which the injury was caused. The rule of respondent superior rests upon even broader considerations of justice; it is directly opposed to the concept of fault, either actual or imputed, upon the part of the principal, for it is applied to cases where he actually disapproved or forbade the act which caused the injury. The rule embodied in the maxim sic utere tuo ut alienum non laedas, requiring the owner of a dangerous, but lawful, contrivance to operate it at his peril, is but a

further illustration of the fact that, under the law of the land, liability for injuries to another is not necessarily related to fault or negligence. The same is true, in a measure, of the doctrine of res ipsa loquitur, under which a person for whose benefit an undertaking likely to cause injury is conducted, may be held liable for the consequences thereof, even though the undertaking be conducted by an independent contractor.

Mainly upon these considerations the Supreme Court of the United States has recognized and applied the doctrine that a state legislature may impose a liability without fault. In the case of Railroad Company vs. Matthews, (165 U. S. 9,) the court sustained a statute imposing upon railroad companies an absolute liability for loss resulting from fires from their engines. In the case of Clark vs. Russell (97 Fed. 900) the Circuit Court of Appeals for the Eighth Circuit applied the same doctrine to a statute of Nebraska imposing liability upon railroad companies for all physical injuries to passengers unless due to the criminal negligence of the passenger himself. In a case involving the validity of the same statute, Chicago Railroad vs. Zernecke (183 U. S. 582) the Supreme Court of the United States discussed at length the right of a legislature to impose such a liability, irrespective of fault, and reaffirmed that rule of constitutional law, but sustained the particular statute on other grounds.

It would seem to follow, therefore, both on reason and authority, that there is nothing arbitrary, nothing violative of vested rights, nothing in contravention of the law of the land for a state legislature to impose upon employers engaged in occupations which experience fairly demonstrates. are intrinsically hazardous, a liability, irrespective of the employer's negligence, to compensate his workmen for occupational injuries; and that such a law may be sustained, independently of the police power. But it would seem to follow that such a law must be one of direct liability, and that the taxation of employers generally to maintain a

state insurance fund involving, as it does, the taking of the property of one employer to pay the obligations of another for injuries with which the former has no responsible connection, can be sustained, if at all, only as a legitimate exercise of the police power.

(b) When we come to the question as to whether a compensation act may be made exclusive; that is, whether the workman's common law remedy in tort for the employer's negligence may be abrogated, it would seem, on first impression, that the observations heretofore made with respect to the power of the legislature to repeal a rule of negligence would apply with equal force. If the legislature may abolish a defense based upon a rule of negligence, may it not also abolish a right of action arising out of negligence? If the employer has no vested right in a rule of negligence, has the employe a vested right in a common law cause of action for negligence which has not yet accrued? The Supreme Court of the United States has answered this in the negative by sustaining a statute of Pennsylvania which, in substance, abolished a common law right of action for personal injury arising out of another's negligence. The court said that "If it be conceded that the plaintiff in error could have recovered but for the statute, it does not follow that the Legislature of Pennsylvania in preventing a recovery took away a vested right or a right of property. As the accident from which the cause of action is asserted to have arisen occurred long after the passage of the statute, it is difficult to grasp the contention that the statute deprived the plaintiff in error of the rights just stated" (Martin vs. Pittsburg & C. R. Co., 203 U. S. 284, 295). See also views of Mr. Justice Holmes in Atchison & C. R. R. vs, Sowers 213, U. S. 55, and Sawyer vs. El Paso & C. R. Co. (Texas) 108 S. W. 719. Upon the views thus expressed the Federal Commission has recommended an exclusive compensation act for railroads.

With reference to the law of the land, however, it cannot be said that the right of action for personal injuries

arising from the negligence of another rests upon exactly the same considerations as the defense of non-liability except for negligence. There may, as we have seen, be cases in the common law of tort liability for personal injury, independently of negligence; but, on the other hand, does the common law afford any illustrations where there is no right of action for personal injury directly caused by the intentional misconduct, fault or moral obliquity of another, if he be sui juris? In point of principle, the abolition of the workman's common law remedy, without more, might conceivably be open to the objection that it is "an arbitrary exercise of the powers of government unrestrained by the established principles of distributive justice;" but if, at the same time, he is given, in lieu thereof, the benefit of a plan of compensation which, under existing conditions, fully accords with the notion of distributive justice, the objection would seem to fade

away.

* * *

This question would, perhaps, be rendered more difficult in Maryland because of the further provision in our Declaration of Rights (Art. 19): "That every man for any injury done him in his person or property ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land." Would the remedy under a plan of compensation be a remedy within the contemplation of this provision? It is not a remedy which was known to the common law. It is a brand new remedy created by statute, which logic and experience demonstrate is more suited to our modern conditions, and more promotive of average justice. The constitutional provision does not in terms guarantee the continuance of common law remedies, but says that a man "ought to have remedy by the course of the Law of the Land," and "ought to have justice and right * * according to the Law of the Land." Was it intended by these words to perpetuate all pre-existing com

mon law remedies? As we have observed, the law of the land does not necessarily mean the rules of the common law, but rather the abstract principles of justice, which find their concrete expression in these rules. May it not be fairly argued, then, upon the same considerations that the due process of law clause is construed, that the purpose of this provision was to preclude such arbitrary action as the virtual denial of redress for injuries? And if a preexisting common law remedy be modified by the substitution of a substantial and adequate remedy, which may reasonably be said, in the interests of distributive justice, to be more suited to our changed conditions, and if the individual be allowed his day in court for the enforcement of that remedy, is that such arbitrary action as would contravene the spirit and intent of this Declaration of Right? In states where a similar provision, embodied in the Constitution itself, embraced also injuries to reputation or character, the question has been presented as to the constitutionality of a statute which, under certain circumstances, limited the remedy in a libel suit to damages to property rights-thus eliminating damages to reputationand there are conflicting decisions as to the validity of such a statute (Parker vs. Detroit Free Press, 72 Mich. 56; Allen vs. Pioneer Press, 40 Minn. 117; Hanson vs. Krechtril, 68 Kansas 670). In these cases the statute abridged the remedy at common law, but it did so by abolishing that part of it which related to injuries to reputation, and in respect of such injuries (a remedy for which was guaranteed by the Constitution) the legislature gave no equivalent remedy. The workman's compensation act, however, proposes to substitute for the narrower remedy based upon negligence the broader remedy of compensation for all occupational injuries—a remedy which is more just, more appropriate and, in the light of experience in England, where, in death cases, the average of compensation awards has exceeded the average damages recovered under the alternative remedy in tort, it is a remedy of more actual value