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 INDUSTRIAL AND LABOR 
 
 RELATIONS 
 
 AT 
 
 CORNELL UNIVERSITY 
 
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C^^^-Q^ ^ '' 
 
 UNCONSTITUTIONALITY --'- ^^- -Ui; .- r: 
 
 OF THE 
 
 lERAL EMPLOYERS' LIABILITY ACT 
 
 ") cdses were argued at the June Term of the Con- 
 it Supreme Court of Errors, which raised the ques- 
 the constitutionahty of the Act of Congress known 
 [^Federal Employers' Liability Act — Mondou against 
 lew York, New Haven and Hartford Railroad 
 Iny, and Hoxie against The New York, New Haven 
 lartford Railroad Company. The opinions of the 
 iin these two cases were handed down July 19th. 
 
 ^much as this is the first decision by an appellate 
 3f a question that is of such wide interest, a full 
 I of the proceedings in court may be desired by 
 lei in other States, and accordingly the opinions 
 ^ Court are accompanied by a report of the oral 
 lents of Mr. O. E. Harrison, who appeared as the 
 Isentative of the Attorney General of the United 
 Is, intervening in the litigation with the consent 
 lie parties thereto, and of Mr. Edward D. Robbins, 
 rral Counsel of the New York, New Haven and 
 tford Railroad Company. There were also argu- 
 es for the plaintiffs in these cases, by Mr. Donald 
 -*erkins for Mondou, and Mr. Hadlai A. Hull for 
 fie, but no adequate report of these arguments is 
 liable. While the arguments of Messrs. Perkins and 
 differed in form from the argument of Mr. Harrison, 
 Doints were made which were not substantially 
 gred by his argument. 
 
William H. Hoxie 
 • vs. 
 ■The New York, New 
 Haven and Hartford 
 Railroad Company. 
 
 Supreme Court of Errors, 
 
 New Haven County, 
 
 June Term, 1909. 
 
 Edgar C. Motstdou 
 
 vs. 
 
 The New York, New 
 
 Haven and Hartford 
 
 Railroad Company. 
 
 Supreme Court of Errors, 
 
 New Haven County, 
 
 June Term, 1909. 
 
 ORAL ARGUMENT OF MR. O. E. HARRISON, A 
 
 REPRESENTATIVE OF THE ATTORNEY 
 
 GENERAL OF THE UNITED STATES. 
 
 If it may please Your Honors : The questions that are 
 raised by those who are asserting the invalidity of the 
 Employers' Liability Act may be stated as follows : 
 
 1st. Has Congress power under the Commerce Clause to 
 regulate the relations of master and servant as between an 
 interstate carrier and an interstate servant ? 
 
 2d. Is this Act in excess of that power, in that it regu- 
 lates such relation as to intrastate employes by making 
 a carrier liable for their injuries to the interstate servant ? 
 
 3d. Does the Act violate the Fifth Amendment as to 
 classifications because confined to railroads or because it 
 •embraces all interstate employes of interstate roads with- 
 out regard to the character of interstate service in which 
 .such employes are engaged? 
 
 4th. Has Congress power to adopt a statutory rule in 
 assessing damages? 
 
5th. Has Congress power to abolish the doctrine of as- 
 sumed risk in cases where the violation by a carrier of any 
 statute enacted for the safety of employes contributed to the 
 injury or death of such employe? 
 
 6th. Has Congress power to declare void a contract of 
 employment which releases in advance actions for negli- 
 gence ? 
 
 These several propositions pertain to the various sections, 
 of the Act. They are, as has been well stated, separable, but 
 we submit that they are all constitutional, and I want to. 
 briefly discuss them in the order above named. 
 
 First, Has Congress the power under the commerce 
 clause to regulate the relation of master and servant as be- 
 tween an interstate carrier and an interstate servant? 
 
 It seems to me that this question, this inquiry, has been 
 foreclosed by the opinion in the former Employers' Liabil- 
 ity case, and by the subsequent statement of the Court in the- 
 Adair case. I shall not quote from those two cases because 
 that has already been done. But when this Court comes to. 
 examine the opinions in the former cases it will find that 
 the act there was held invalid on a question of construction ; 
 that because the act was not in terms limited to the relation 
 between an interstate employe and an interstate employer, 
 it must fall. Four of the judges in that case believed that 
 the language could be construed to limit it to that class, and 
 on that ground they said it was constitutional. Five of the- 
 judges, in the opinion written by Mr. Justice White, held 
 that the language was not in terms limited to that class of 
 carriers, and therefore the act must be held to be uncon- 
 
 ,1(1 (1 II fU' ,-i'i /,'! I- >rfUiY W3H 
 Y 'I I f fi ^ viljti J.J - !■ ), ;i 
 
stitutional. That opinion was signed by Mr. Justice Day 
 and by Mr. Justice White, by whom it was deHvered. Three 
 of the judges who concurred in the majority opinion, Mr. 
 Justice Peckham, Mr. Justice Fuller and Mr. Justice 
 Brewer, stated that they were not able to concur in the 
 question of power as stated by Mr. Justice White, but they 
 held the act unconstitutional. The four justices who dis- 
 sented agreed with Mr. Justice White and Mr. Justice Day 
 that Congress had the power. So you will find upon ex- 
 amination of the majority and the dissenting opinions that 
 six of. the justices of the highest court of the land have held 
 that Congress has the power to legislate upon this subject 
 matter. 
 
 Now that is our construction, it may be said, as to what 
 the Court decided in that case. But we are not left to that. 
 We pass on to the Adair case in the 208th U. S., and there 
 both in the majority and in the dissenting opinion, as has 
 been stated here, we find the court again said that it had 
 held in the former Employers' Liability cases that Congress 
 had the power to legislate upon the subject matter. So it 
 seems to me that this inquiry, as to the power, seems to be 
 foreclosed. This Court will not need to examine further 
 than the two cases that have been cited. 
 
 If the Court wants to go beyond the two cases that I have 
 cited, there are then two classes of cases which demonstrate ' 
 that this doctrine is neither novel nor startling. One class 
 of cases are those relating to navigation. Another class of 
 cases are those where various State legislation on the same 
 subject has come before the Court, and which the Supreme 
 Court has upheld as being valid until Congress legislates 
 upon the subject matter, "which it has the power to do." 
 
Now briefly as to these two classes of cases. It must be 
 understood at the outset that the power of Congress to 
 regulate interstate railroads is as great as its power to 
 regulate navigation. It comes from the same clause of the 
 Constitution, and it is as great as the power to regulate 
 commerce with foreign nations. 
 
 The extent of that power to regulate navigation is shown 
 in the Daniel Ball case, in Cooley vs. Board of Wardens, in 
 Paterson vs. the Eudora and the Irrawaddy, and other 
 cases that are cited on the brief. In the Daniel Ball case, 
 as you will remember, a steamboat was navigating Grand 
 River, wholly in the State of Michigan, without a license. 
 The Court held that while Congress could not regulate intra- 
 state commerce, it could affect the instruments of intrastate 
 commerce and prescribe the duty as incidental to its power 
 to regulate interstate commerce. In Paterson vs. The 
 Eudora, the Court upheld the act of Congress making it un- 
 lawful to pay seamen wages in advance. In the case of the 
 Irrawaddy the court upheld the power of Congress to inter- 
 fere with the freedom of contract and with the common law 
 rules to regulate the liability of ship owners in order to pro- 
 tect the safety of commerce. Other cases might be cited as 
 showing the extent of the power as to navigation. 
 
 An examination of them will show that the regulation of 
 interstate commerce extends to the regulation of the persons 
 engaged in it. Surely the power over railroads must be the 
 same. And merely because it is asserted here in this legisla- 
 tion, possibly for the first time, it is contended that the 
 power does not exist. The engine, the train, the cars which 
 move commerce may be regulated by Congress. Why cannot 
 
Congress regulate the relation between the interstate carrier 
 and its interstate servant? No commerce can move with- 
 out labor. How can Congress regulate commerce if it can- 
 not impose rules of liability upon those engaged in it? It 
 cannot be claimed that such legislation is merely auxiliary 
 to or grows out of commerce. The same contention could 
 be made as to freight rates, as to car facilities, as to 
 switches and side tracks. They are not commerce in them- 
 selves, and yet they all come within the' scope of federal 
 power. Price is one of the terms of every contract for 
 moving freight, and it can be regulated. Why not liability, 
 which is one of the terms of the contract between the em- 
 ployer and the employe who moves the traffic ? If Congress 
 can regulate the relation between the carrier and the ship- 
 per, why not between the carrier and the interstate servant ? 
 The federal power to regulate quarantine must be admitted. 
 If Congress has the power to legislate against disease, why 
 not against accident ? Where is the basis of reason to deny 
 its authority to regulate the liability of the carrier for 
 injtury totheinterstate servant if it can regulate the relation 
 between the carrier and the shipper ? Congress cannot con- 
 trol the perils of the sea, but it has the power, as shown by 
 these admiralty cases, to regulate the obligations which 
 arise from losses caused by the perils of the sea. Let's see 
 about that. The moving cause of an injury to a vessel in a 
 collision may be a foreign vessel over which Congress has 
 no control whatever. It has no power to legislate concern- 
 ing it, directly, and yet under the circumstances, Congress 
 has the power to make regulations and to declare the rule 
 which shall be obligatory upon courts of admiralty, and 
 to alter the rules as to apportionment, as between ship and 
 cargo, of the loss, which is the result of collision. And so I 
 
8 
 
 say that aside from these two cases (207 U. S. and 208 
 U. S.) on this question of power, if it is to be inquired into 
 anew here, the admiralty cases show the extent of the 
 power of Congress over navigation, and it must be the same 
 over interstate railroads. 
 
 Now as to the second class of cases. I think it is clear that 
 the Supreme Court has not only implied, but specifically 
 stated, in former cases that Congress could legislate upon 
 this identical subject mater. So when the contention is 
 made that a regulation of this character can only be asserted 
 under the police power, and that that power vests only in 
 the States, why, we answer by calling attention to Sherlock 
 vs. Ailing and other cases cited on the brief. 
 
 It is held that this subject matter, the interstate carrier's 
 liability to its interstate servant, is national, and that Con- 
 gress can legislate in this field. I shall not take the time to 
 cite and to quote very extensively, but I want to call the 
 Court's attention to just one case. Mr. Justice Harlan, in 
 writing the opinion of the Circuit Court of Appeals in 
 Pierce vs. Van Dusen, 78 Federal, and decided by Justices 
 Harlan, Taft and Lurton, in a case where the State had 
 passed an act like this, used the following language : 
 
 "Undoubtedly, the whole subject of the liability 
 of interstate railroad companies for the negligence 
 of those in their service may be covered by national 
 legislation enacted by Congress under its power to 
 regulate commerce among the States. But, as 
 Congress has not dealt with that subject, it was 
 competent for Ohio to declare that an employe of 
 any railroad corporation doing business here, in- 
 cluding those engaged in commerce among the 
 
States, shall be deemed, in respect to his acts with- 
 in this State, the superior, not the fellow servant, 
 of other employes placed under his control. If the 
 effect of the Ohio statutes Be, as undoubtedly it is, 
 to impose upon such corporations, in particular 
 circumstances, a liability for injuries received by 
 some of its employes which would not otherwise 
 rest upon them according to the principles of gen- 
 eral law , that fact does not release the Federal court 
 from its obligation to enforce the enactments of 
 the State. Of the validity of such legislation we 
 entertain no doubt." 
 
 And the case of Mackey is cited, where — 
 
 "the Supreme Court had occasion to consider sev- 
 eral objections to a law of Kansas making railroad 
 companies liable for injuries suffered by employes 
 through the negligence of their fellow servants. 
 Replying to the objection that such legislation 
 denied the equal protection of the laws to railroad 
 companies, in that it did not apply alike to all cor- 
 porations, the Court said : 'But the hazardous 
 character of the business of operating a railway 
 would seem to call for special legislation with re- 
 spect to railroad corporations, having for its ob- 
 ject the protection of their employes as well as 
 the safety of the public' " 
 
 The first sentence of the quotation is : 
 
 "Undoubtedly the whole subject of the liability 
 of interstate railroad companies for the negligence 
 of their ser'C'ice may be covered by national legisla- 
 tion enacted by Congress under its power to regu- 
 late commerce among the states." 
 
 and I cite that particularly upon this question of power. 
 
lO 
 
 That case is followed by bthers; the Herrick case, the 
 Pontius case, the Baugh case. I will not quote from these 
 cases as they no doubt will be examined. It is said by an 
 eminent authority that this kind of legislation is a regula- 
 tion of commerce, because the fixing of a civil liability helps 
 to make commerce more safe. The imposition of this lia- 
 bility on a carrier has a direct tendency to promote greater 
 care and diligence by a carrier in complying with statutory 
 obligations for safety as well as common law obligations 
 for safety. 
 
 Now that expression is by Judge Taft in the case 
 of Narramore vs. Cleveland, C, C. & St. L. Ry. Co., found 
 in the 96 Federal. In speaking of the statute of Ohio 
 requiring railroad companies to block the frogs, switches 
 and guard rails on their tracks, under penalty of a fine, he 
 said: 
 
 "The intention of the legislature of Ohio was to 
 protect the employes of railways from injury from 
 a very frequent source of danger by compelling the 
 railway companies to adopt a well-known safety 
 device. It was passed in pursuance of the police 
 power of the State, and it expressly provided, as 
 one mode of enforcing it, for a criminal prosecu- 
 tion of the delinquent companies. The expression 
 of one mode of enforcing it did not exclude the op- 
 eration of another, and in many respects more ef- 
 ficacious, means of compelling compliance with its 
 terms, to wit, the right of civil action against a 
 delinquent railway by one of the class sought to be 
 protected by the statute for injury caused by a fail- 
 ure to comply with its requirements." 
 
 I shall not discuss the first inquiry further. It seems to 
 me from e\ery point of view that the Federal Congress 
 
II 
 
 does have the power to estabhsh the rule of liabiHty be- 
 tween an interstate carrier and its employes engaged in 
 interstate commerce, and that such a rule is a regulation of 
 commerce. I don't believe this Court will need to examine 
 further than the Employers' Liability case and the Adair 
 case to reach the conclusion that the question of power is 
 foreclosed. But if it desires to proceed further, these ad- 
 miralty cases and decisions upholding the various State 
 statutes on the same subject will furnish much aid. 
 
 Now as to the second proposition. Having determined 
 that the regulation of the relation of master and servant 
 as between an interstate carrier and its interstate employe 
 is a regulation of commerce, let us consider whether or not 
 the rule established by this act goes beyond the power of 
 Congress in that it regulates such relation as to intrastate 
 employes by making the carrier liable for their negligence 
 to interstate employes ; because the act properly construed 
 includes injuries suffered by an employe while he is engaged 
 in interstate commerce, through the negligence of any of 
 the officers, agents or employes of the carrier, whether or 
 not the latter were employed in such commerce. 
 
 All that the act does in this particular is to regulate the 
 relation of a common carrier engaged in interstate com- 
 merce to the employe while engaged in interstate commerce. 
 In order to protect the interstate employe it imposes a lia- 
 bility on the interstate employer. -It abolishes the common 
 law doctrine which forbade the recovery of damages for in- 
 juries to employes sustained by the negligence of fellow 
 servants, but this it does only as to employes engaged in in- 
 terstate commerce. No change is made with reference to the 
 
12 
 
 rights or the liabiHties of those engaged in intrastate com- 
 merce. Their relationship remains unchanged. 
 
 Now, Your Honors, it seems to me that it is well estab- 
 lished that wherever it is a necessary incident to the regu- 
 lation of interstate commerce, to control intrastate com- 
 merce, that Congress can do that. It rests upon the theory 
 that over interstate commerce there is only one sovereign 
 power, and that power is the Federal Government. In the 
 exercise of that sovereign power to regulate interstate com- 
 merce Congress is absolutely untrammelled by any of the 
 rights of the States or by any of the rights of the cor- 
 porations derived from the States. Anything conflict- 
 ing with the Federal sovereignty over interstate com- 
 merce must give way to the ample and conclusive power 
 conferred on the national government over this subject. If 
 the act regulated the relation between an interstate carrier 
 and its intrastate servant the power would not exist. But if 
 in regulating the relation between an interstate carrier and 
 its interstate servant it becomes necessary to make the inter- 
 state carrier liable for an injury, animate or inaminate, in^ 
 terstate or intrastate. Congress has the power. 
 
 That is true to the same extent that insolvency laws are 
 suspended while the National Bankruptcy Act is in force. 
 It will be conceded that the Federal power is ample in bank- 
 ruptcy cases to affect purely local transactions of merchants 
 where the rights of creditors generally may be affected. 
 Where such rights of general creditors are involved, the 
 Federal power assumes the adjustment of relations arising 
 out of rights otherwise controlled by exclusively local law. 
 The same is true when rights otherwise exclusively local 
 
13 
 
 come into conflict with rights founded on Federal laws 
 regulating interstate commerce. In such cases it is essential 
 that local rights be regulated in order that interstate regu- 
 lation may be made reasonably effective. 
 
 Inherent in the Federal sovereignty over the whole sub- 
 ject, and essential to its maintenance, is the power to make 
 any incidental regulation of commerce within the States, in 
 cases where such intrastate regulation is necessary to the 
 complete, uniform and orderly regulation of interstate com- 
 merce. In regulating this relation it is immaterial whether 
 the injury is caused by a defective machine, another inter- 
 state employe, or an intrastate workman, so long as the lia- 
 bility is only from the interstate carrier to the interstate ser- 
 A'ant. And the liability here is that. Congress may ignore 
 the cause of the injury, so far as the question of power is 
 concerned. It has thrown the cloak of protection over the 
 interstate employe. It has given to that employe certain 
 rights not possessed by others not so employed. It affords 
 that protection in order that he may be more diligent in 
 transacting the business committed to him, that his duty 
 may be performed more thoroughly, and commerce thereby 
 made more safe. That is shown by the discussions of the 
 committees cited on the brief. It is the man that is protected 
 in order that commerce may be protected; and that man 
 is an instrument by which commerce is transported and 
 commerce is by this legislation regulated. It matters not 
 whether the cause of the injury be animate or inanimate, 
 provided it be of a nature for which the carrier may fairly 
 be made responsible. 
 
 Can it be said that Congress has the power to make a car- 
 rier liable for a defective track, bridge, or car, and yet not 
 
14 
 
 for its animate agent? Why, it seems to me to state the 
 proposition is only to demonstrate its unsoundness. Con- 
 gress has said that if the master allows any agency which 
 enters the domain of interstate commerce to become an 
 obstacle to the safety of interstate employes, he cannot plead 
 as a defense the fellow-servant doctrine. 
 
 Now what was said in the Debs case? 
 
 "Summing up our conclusions, we hold that the 
 Government of the United States is one having 
 jurisdiction over every foot of soil in this territory, 
 and acting directly upon each citizen ; that while it 
 is a government of enumerated powers, it has 
 within the limits of those powers all the attributes 
 of sovereignty; that to it is committed power over 
 interstate commerce and the transmission of the 
 mail; that the powers thus conferred upon the 
 National Government are not dormant, but have • 
 been assumed and put into practical exercise by the 
 legislation of Congress; that in the exercise of 
 those powers it is competent for the nation to re- 
 move all obstructions upon highways, natural or 
 artificial, to the passage of interstate commerce or 
 the carrying of the mail ; that while it may be com- 
 petent for the government to forcibly remove all 
 such obstructions, it is equally within its com- 
 petency to appeal to the civil courts for an inquiry 
 and determination as to the existence and charac- 
 ter of any alleged obstructions, and if such are 
 found to exist, or threaten to occur, to invoke the 
 powers of those courts to remove or restrain such 
 obstructions." 
 
 In that case the acts of the rioters tended to interfere 
 with the transportation of goods and passengers in inter- 
 state tra,ins, and therefore they were brought within the 
 
15 
 
 Federal power. They were brought within the operation 
 of the congressional power iinder the Commerce Clause. 
 Now it seems that the power which can protect property 
 in interstate transit from purely local attack is broad 
 enough to regulate the liability of the carrier to employes 
 engaged in interstate trafhc from injuries resulting from 
 purely local causes or instrumentalities. 
 
 As a matter of fact thpre is not very much distinction as 
 to the employment by carriers of their servants in interstate 
 and intrastate commerce. I mention this for the reason only 
 of showing the necessity of national control over the subject 
 matter. When a railroad is engaged in interstate commerce, 
 its employes are subject to Federal control, and that power is 
 exclusive. This subject becomes national. And that is ob- 
 vious when the facts as to the operation of interstate rail- 
 roads are carefully considered. We cannot assume a seg- 
 regation where none in fact exists. We must consider 
 that all the departments and divisions of such railroads are 
 closely interrelated and intermingled. They use the same 
 tracks, the same apparatus and the same engineers and con- 
 ductors in hauling both interstate and intrastate traffic. 
 That is not beside the issue here. When you examine the 
 admiralty cases, you will find that that was the reason that 
 the courts gave for hofding that it was necessary in regu- 
 lating navigation to compel all ships to carry lights ; those 
 engaged in interstate commerce, those engaged in intra- 
 state commerce, and those engaged in no commerce at all ; 
 because it was necessary to do that to regulate interstate 
 commerce. 
 
 It seems that the power over railroads must be the same. 
 We say the intermingling of both kinds of traffic makes 
 
i6 
 
 necessary the adoption of some uniform system of regula- 
 tion, and the Supreme Court of the United States has re- 
 peatedly held that subjects of commerce, such as are in 
 their nature national, admit only of one uniform system of 
 regulation and are exclusively within the legislative power 
 of Congress. 
 
 Mr. Justice Dodge of the Supreme Court of Wisconsin, 
 in the case of Wisconsin vs. The Chicago, Milwaukee & St. 
 Paul R. R., clearly expressed the necessity of this Federal 
 control -when he said : 
 
 "It would seem that any severance of control 
 over State from interstate trains involves so much 
 of confusion and probability of danger, and its pos- 
 sibility even is so doubtful and experimental, that 
 no legislature would absolutely precipitate it with- 
 out careful consideration nor without providing in 
 the act for the event of the failure of such experi- 
 ments." 
 
 Now let us see how far the Courts have gone in admir- 
 alty cases on this proposition. Judge Love, in the United 
 States vs. Burlington & Henderson County Ferry Co., 21 
 Federal, said : 
 
 "If the power of Congress is not full and 
 plenary over navigation in all the waters of the 
 United States and over all vessels carrying on 
 commerce upon the same, whether foreign, coast- 
 wise, interstate, or strictly domestic to the States, 
 a disastrous conflict must occur, both legislative 
 and judicial. If the respondents' counsel be right 
 in their position, Congress has power to regulate 
 one class of vessels and the States another class 
 navigating the same waters side by side. In order 
 
17 
 
 to determine the law and the jurisdiction it would 
 be necessary in every case to first ascertain in what 
 kind of commerce the vessel is engaged. Congress 
 would have the undoubted right to prescribe rules 
 and , regulations for the navigation of vessels 
 carrying on commerce among the States and afloat 
 upon the waters of the United States. The States, 
 upon the respondents' theory, would have power to 
 regulate the navigation in the same waters of 
 watercraft engaged in their strictly domestic com- 
 merce. The Federal Government might prescribe 
 one set of rules and regulations ; the State govern- 
 ment, a different set of rules and regulations." • 
 
 Congress here is regulating solely the liability of an in- 
 terstate carrier to an interstate servant; and when it be- 
 comes necessary in making that regulation to incidentally 
 affect intrastate commerce, or even those engaged in it, it 
 has power to do so. The authorities just quoted sustain the 
 proposition. 
 
 What did Judge Benedict say in the Hazel Kirk ? 
 
 "Manifestly it is not possible for Congress to 
 fully control and adequately protect commerce 
 with foreign nations and among the several States, 
 when that commerce is pursued by means of ves- 
 sels navigating the public waters of the United 
 States, without controlling the navigation of all 
 vessels navigating such waters, not only those en- 
 gaged in commerce with foreign nations, and 
 among the several States, but those engaged in do- 
 mestic commerce, and those engaged in no 
 commerce at all, like the yachts. Accordingly Con- 
 gress has undertaken to regulate the lights to be 
 carried by all vessels navigating such waters, and 
 3 
 
i8 
 
 the courses to be pursued by all vessels meeting 
 vipon such waters, and these regulations are su- 
 preme and binding upon all vessels there navigat- 
 ing, because only by controlling in those particu- 
 lars the navigation of all vessels navigating such 
 waters, can the safe navigation of vessels engaged 
 in interstate or foreign commerce upon such 
 waters be secured." 
 
 In the Debs case the same rule was applied to railroads. 
 The Court held that those engaged in no commerce at all 
 could be restrained from interfering with commerce be- 
 tween the States. 
 
 Now it seems that if we get past the first inquiry; if we 
 reach the conclusion that Congress has the power to regu- 
 late the subject matter, that then we must find that the 
 power is full and plenary ; and if the power exists to protect 
 the interstate employe, then there is no regulation of the 
 relation of an interstate carrier to its intrastate servant 
 merely because the interstate carrier is made liable to the 
 interstate employe for injuries caused by an intrastate ser- 
 vant. The relation between interstate carrier and the intra- 
 state servant remains unchanged. 
 
 The Federal Employers' Liability Act does not go as far 
 as the court did in the Hazel Kirk case. It only makes the 
 interstate carrier liable for mjuries suffered by its interstate 
 employes caused by the negligence of any of the other em- 
 ployes of the carrier, or by any of its defective instruments 
 caused by the negligence of the carrier itself. The negli- 
 gence of the intrastate servant is imputed to the carrier. 
 Can it be said that Congress has the power to protect such 
 interstate employe, and through him interstate commerce, 
 
19 
 
 and then is powerless to protect him from a large percent- 
 age of injuries which may occur and for which the inter- 
 state carrier is responsible ? In the language of Mr. Justice 
 White, this would be "but to concede the power and then to 
 deny it; or, at all events, to recognize the power and then 
 render it incomplete." We submit, therefore, that the act 
 in no way regulates the relationship between the carrier and 
 its employes who are engaged in intrastate commerce. 
 Their relationship remains the same. Once concede the 
 power to protect the interstate servants in order to protect 
 interstate commerce, and the power then must be full and 
 plenary; and the act, therefore, does not go beyond the 
 power of Congress in that it regulates the relations between 
 interstate carrier and its intrastate servant. 
 
 And now as to the third proposition : Does the act vio- 
 late the Fifth Amendment as to classification? 
 
 This statute will not be held invalid as class legislation, 
 ■either because it is confined to railroads, which is one con- 
 tention, or because it is not limited to employes whose occu- 
 pations are of a hazardous nature. Railroads have fre- 
 quently been classed as objects for special legislation. The 
 hazardous character of the business of operating a railroad 
 is the basis for such classification. 
 
 At the beginning of this discussion, as to this third in- 
 quiry as to classification and as to its being class legislation, 
 I want to call the Court's attention to the fact that the 
 Fifth Amendment is not as broad as the Fourteenth 
 Amendment with respect to the protection it affords 
 ■citizens. The Fifth Amendment as to Federal legislation 
 is generally said to contain the same protection from class 
 
20 
 
 legislation as is contained in the Fourteenth Amendment 
 with respect to the States. It is sometimes said that the one 
 is the equal of the other. Well, it is not true. That is dis- 
 putable, to say the least. It must be assumed that the 
 people deliberately wrote in the Fourteenth Amendment the 
 words that are not found in the Fifth ; and those words are, 
 "nor deny to any person within its jurisdiction the equal 
 protection of the laws." These amendments may be equal 
 as to the due process clause. 
 
 I call the Court's attention to this as being of some sig- 
 nificance, for the reason that when we come to discuss class 
 legislation, the cases that are cited are those which arise 
 under the Fourteenth Amendment. The Supreme Court 
 has never been called upon to pass upon the question as to 
 whether or not the Fifth Amendment and the Fourteenth 
 are the same. At least, I know of no case. There was a. 
 suggestion in Judge Moody's opinion in the former case, 
 but he said the act complied with both. 
 
 Now as to the construction of the language found in the- 
 Fourteenth Amendment : If we approach it from the 
 standpoint that these . amendments are equal; that this is 
 class legislation because it denies the equal protection of the 
 law, — attention will be- called to the leading case of Con- 
 nelly vs. Sewer Pipe Company, where the anti-trust act of 
 Illinois was declared invalid because of provisions therein 
 contained exempting agricultural products and live stock, 
 and it was said to be class legislation. That case is not in. 
 point with respect to this discussion. 
 
 If we assume that the Fifth Amendment is equal to the- 
 Fourteenth Amendment in this particular, why, then we call 
 
21 
 
 the Court's attention to similar cases under the Fourteenth 
 Amendment; and what are they? They are cases of this 
 identical character. They are cases coming up to the 
 Supreme Court of the United States, where a State statute 
 was passed regulating this liability, and wherein it was con- 
 tended that the act was invalid as class legislation ; and in 
 ■every one of those cases the Court decided that the statutes 
 wei-e not invalid merely because th^y did not give railroads 
 the equal protection of the law. It seems to me that it is not 
 necessary to cite at length any cases showing that railroads 
 in themselves may be classed for the special purpose of 
 legislation. Therefore, this act is not objectionable because 
 confined to railroads alone while the other was confined to 
 carriers. 
 
 Now I will not quote the Mackey case, because it is cited 
 on the brief, and I must hurry along. But it seems to me 
 that the first question here 'under consideration — that 
 the act is invalid because it applies to railroads alone — is 
 very easily disposed of when we come to consider the cases 
 that are cited on the brief showing that railroads may be 
 put in a class in this identical kind of legislation. 
 
 But another contention is made against this act as to the 
 Fifth Amendment, and as to class legislation. It is said by 
 some that this act is invalid because it is not limited in terms 
 to those who are engaged in the hazardous business of rail- 
 I roading. The basis of this contention is the injustice, the 
 unreasonableness, the unfairness, the inequality, and the 
 undue process, and the destruction of property, caused by 
 the inclusion in one class of operatives of interstate rail- 
 roads. Well, Your Honors, for more than half a century 
 the railroads themselves have invoked this classification in 
 
22 
 
 the doctrine of common employment. I am not here to 
 criticise or to pass upon the justice or injustice or the harsh- 
 ness of that rule. That need not be considered in discussing 
 the question of power; but I do say that this classification 
 has been used all the time by the courts, following the case 
 of Farwell vs. Boston, as a proper classification for a denial 
 of the right of recovery in cases of personal injuries to ern- 
 ployes. It was stated by Mr. Justice Field, when he said : 
 
 "The general liability of a railroad company for 
 injuries caused by the negligence of its servants to 
 passengers and others not in its service is con- 
 ceded. It covers all injuries to which they do not 
 contribute. But if the injuries befall a servant in 
 the employ a different principle applies." 
 
 He excluded those, and now it is contended that those 
 excluded in this common employment rule, this rule which 
 has been laid down by the Courts, and as enunciated by Mr. 
 Justice Field, are those whose inclusion in the legislative 
 clause is class legislation. Well, if legislation including all 
 employes in the same classification is open to objection, why 
 is the same objection not applicable to the classification 
 which has been used by the railroads as a barrier to the 
 employe's right to recover? The railroads have applied 
 the fellow-servant rule to the man engaged as a telegraph 
 operator as well as to the one engaged in work of the most 
 hazardous sort. They have said that the man tied to his 
 post by the difficulties of railroading and who has no oppor- 
 tunity to inspect his fellow employes, is put upon the same 
 basis as the other. 
 
 I am only speaking of this. Your Honors, as it pertains to 
 classification, not wanting at all to be understood as discus- 
 
sing the expediency or wisdom of such decisions, or as criti- 
 cising the harshness of the rule ; but I do want to be under- 
 stood as saying that if it was proper in making common law 
 rules to place all employes in the same class and apply the 
 rules to all alike, then it is not class legislation when that 
 rule is attempted to be changed to put them all under one 
 head. Can railroads complain when Congress attempts to 
 change the rules to all employes alike after they have been 
 fixed at their earnest solicitation ? Is it contended that the 
 same classification, when legislatively applied to remedy a 
 common law rule, is constitutionally void and must be con- 
 demned? Is the injustice of a rule — and I speak now only 
 as to the classification — is the injustice of a ruk to be relied 
 upon as the justification for its maintenance? Is it pos- 
 sible that the Courts can make a judicial classification which 
 is constitutionally impossible when legislatively attempted? 
 Now it seems to me that this same common employment as a 
 classification in itself, has been urged by counsel and sus- 
 tained by the Courts, until it may be 'fairly stated that all 
 within the lines of the same common employment have a 
 legal status; and a distinct legal classijfioation ; that such a 
 classification has long been recognized in the law as affect- 
 ing pei^sonal injuries to employes. If the power exists to 
 change the common law rule, then it can be changed as to 
 all alike. The Commodities Clause Caste furnishes some aid. 
 In that recent case before the' Supreme Court the' vahdity of 
 an amendment to the interstate commerce act was involved. 
 It contained a clause commonly known as the Commodities 
 Clause, In that clause timbei;.and the manufactured prod- 
 ucts thereof were excepted from the terms of the prohibi- 
 tion. It was contended that tliat was in conflict with the 
 Fifth Amendment ; and, indeed, it was one of the great con- 
 
24 
 
 tentions that was made in the case. And just fresh from 
 the court a few days ago we get this in that case : 
 
 "Without elaborating, we hold the contention 
 that the clause under consideration is void because 
 of the exception as to timber and the manufac- 
 tured products thereof, is without merit. Decid- 
 ing as we do that the clause as construed was a 
 lawful exercise by Congress of the power to regu- 
 late commerce, we know of no constitutional limit- 
 ation requiring that such a regulation when 
 adopted should be applied to all commodities alike. 
 It follows that even if we gave heed to the many 
 reasons of expedience which have been suggested 
 in argument against the exception and the injustice 
 and favoritism which it is asserted will be operated 
 thereby; that fact can have no weight in passing 
 upon the question of power ; and the same reasons 
 also dispose of the contention that the clause is 
 void as a discrimination between carriers." 
 
 It will be seen then that Congress has a wide discretion 
 in enacting such laws. In regulating commerce Congress 
 may differentiate as to business and classify certain ones as 
 hazardous and so place upon, or add burdens to them, in 
 order that commerce may be more effectually carried on. 
 We submit that the classification here made is reasonable, 
 that the statute does not violate the due process provision of 
 the Constitution, and will not be declared invalid as vio- 
 lative of the Fifth Amendment because of class legislation. 
 
 Now as to the next proposition, briefly: Has Congress 
 the power to adopt a statutory rule in assessing damages? 
 That inquiry arises out of the consideration of Section 
 three of the Act. That section modifies a rule of liability 
 
25 
 
 lieretofore recognized, namely, contributory negligence, 
 ■as a ground of defense. Has Congress the power to 
 modify that? The rule of comparative negligence is 
 adopted by this act. It places the interstate servant in 
 a position where he can be compensated for injuries upon 
 proof of the negligence of his interstate employer ; and the 
 question of the servant's contributory negligence is only 
 used for the purpose of reducing the compensation, the 
 theory being that he should bear his share of the burden. 
 
 There is no constitutional objection to Congress fixing 
 the rule for thus assessing damages. That is nothing 
 more than, the admiralty rule applied to railroads. If 
 the classification is a reasonable one and if Congress has 
 power to make it, it must follow that as a matter of public 
 policy Congress may provide that interstate carriers must 
 compensate their interstate employes for injuries received 
 by them while engaged in such commerce. 
 
 This act merely declares that contributory negligence 
 shall not be a bar. Congress has adopted this rule of 
 public policy, with a view of making more sure and safe 
 the transportation of commerce. It might have adopted 
 the other view ; it might have said that commerce would 
 be safeguarded by enforcing the rule of contributory 
 negligence. Indeed, that is what the courts did say when 
 they laid down the common law rule; that the estab- 
 lishment of that rule would safeguard it. It is found in 
 Farwell vs. Boston, the first case. Now Congress may 
 find, when it attempts to change that rule, that the 
 abolishment of it would conserve the safety of commerce. 
 The character of the rule is a matter of legislative dis- 
 cretion, after we determine that Congress has the power. 
 
26 
 
 The power of Congress to establish a rule of liability for 
 injury to freight in interstate transportation, and tO' 
 establish all rules necessary to the adjustment of the same, 
 would seem to' be conceded. Why not the same power to 
 establish a liability for injury to human beings lawfully 
 engaged in interstate commerce? The former aids in 
 compelling secure transportation of freight and care to 
 prevent injury. Is human safety less important, and 
 shall a legislative power fail because it is not freight but 
 human safety that is involved? That is what Judge 
 Taft said in the Narramore case; that the fixing of a 
 rule of liability made the safety of commerce more secure, 
 — "more efficacious," were the words used. Now if 
 stringent liability invites and promotes greater care, as 
 he stated, then this legislation is an effective weapon 
 to decrease accidents. 
 
 The books are full of cases showing that the fixing of a 
 rule of liability is not the taking of property. Abolishing 
 a rule of common law is taking away no vested right. 
 It certainly does not require the citation of authorities- 
 to establish that. It is laid down in Munn vs. Illinois, 
 cited in the brief, that a person has no property, no vested 
 interest in any rule of the common law, that property 
 cannot be taken away without due process, but the 
 law itself as a rule of conduct may be changed at the 
 whim of the legislature, unless prevented by constitu- 
 tional limitations. 
 
 This is found splendidly stated in the 74th New York 
 in Berthold vs. O'Reilly. If Congress has the power to 
 regulate this relation it has the power to abolish the rule 
 of contributory negligence, or to modify it, as it has done 
 
27 
 
 here. Instead of saying that it shall be used to defeat 
 a recovery, it can say as it has said in this legislation that 
 it may be used as a basis for cutting down the damages. 
 And that is what, it has said. 
 
 Why, I say that this is nothing more than the admiralty 
 rule applied. If we are to approach this from the stand- 
 point of determining whether or not it is unreasonable, let 
 us look at the Max Morris case. In that case the Court 
 said contributory negligence in a case like the present 
 should not wholly bar recovery. 
 
 "There would have been no injury to the 
 libelant but for the fault of the vessel, and 
 while, on the other hand, the court ought not 
 to give him full compensation for the injury, 
 where he himself was partly in fault, it ought 
 not, on the other hand, to be restrained from 
 saying that the fact of his negligence should not 
 deprive him of all recovery of damages." 
 
 Congress here says the same thing. Congress in this 
 legislation has adopted the admiralty rule, and we are 
 now asked to determine whether or not that is a reason- 
 able exercise of its power. 
 
 You will find the same rule in the other admiralty 
 cases, in the Nathan Hale, the Serapis, the Juha Fowler. 
 As Judge Pardee said in the Johnson case, 86 Federal : 
 
 " But finding that the libelant contributed to 
 his own injury does not dispose of the case. 
 The common-law rules with reference to con- 
 tributory negligence do not control in the ad- 
 miralty. In cases of marine tort the admiralty 
 
28 
 
 courts, where both parties are in fault, will 
 divide the damages as the circumstances sur- 
 rounding the tort in question may require." 
 
 That is an enunciation from the Court. The statute 
 comes from Congress. 
 
 Now if Congress has the power to pass the act in ques- 
 tion, it has the power certainly to establish a rule that 
 Courts should apply, the same -rule as to railroads that 
 the Courts themselves have applied in admiralty cases. 
 
 It appears, therefore, that if Congress in regulating 
 commerce has the power to regulate the relation between 
 interstate carriers and interstate servants, then its power 
 reaches to the extent of fixing the rules of liability; and 
 it can abolish or change or modify the employer's liabil- 
 ity. It can abolish one rule of liability and substitute 
 another, and a few years later it can do the same thing 
 over. This act means that Congress has said that com- 
 merce shall be conducted under the rules of liability here 
 laid down, as the courts have said that it should be done 
 in admiralty cases. That is enough on the question as 
 to the power of Congress to establish' a rule assessing 
 damages. 
 
 Now the next inquiry, briefly: Has Congress power 
 to abolish the doctrine of assumed risk in cases where 
 the violation by a carrier of any statute enacted for the 
 safety of employes contributed to the injury or death 
 of such employe? That arises out of the consideration of 
 Section four of the act. It seems to me that question 
 is clearly foreclosed. The same argument that is made 
 as to the other proposition can be made here. The 
 
principle is the same. Congress can impose this liabihty. 
 It has done it in the Safety Appliance -Act. It has passed 
 laws enacting that certain safety devices should be pro- 
 vided by railroad companies, and has provided that the 
 employe should be relieved of the doctrine of assumed 
 risk where the injury resulted from the using of cars not 
 equipped as provided by law. Justice Fuller, in the 
 Johnson case, 196 U. S. i, at the outset of his opinion 
 says: 
 
 "The plaintiff claims he was relieved of any 
 assumption of risk under the common law 
 rules." 
 
 What was the act there and what is the act here ? Section 
 eight of that act reads as follows : 
 
 "That any employe of any such common 
 carrier who may be injured by any locomotive, 
 car or train in use contrary to' the provision of 
 this act shall not be deemed thereby to have 
 assumed the risk thereby occasioned, although 
 continuing in the employment of such carrier 
 after the unlawful use of such locomotive, car or 
 train, had been brought to his knowledge." 
 
 Now it was held in that case that that statute was in 
 derogation of common law; but the court said it must 
 not be construed so strictly as to defeat the purpose of 
 Congress. That it abolished the doctrine of assumed 
 risk met with no criticism whatever from the Court. 
 And then it was taken up again in the Schlemmer case 
 in the 205th and disposed of there.- I will not read what 
 the Court said, but only ask this Court to consider the 
 case. 
 
30 
 
 Now from this opinion alone, it is evident that section 
 eight of the Federal Safety Appliance Act abolished the 
 defense of the doctrine of assumed risk arising under that 
 act, and the partial abolition of the doctrine of assumed 
 risk met with no criticism by the Court as to the power 
 of Congress to so provide. But someone now says that 
 in those statutes there was an explicit regulation of 
 commerce, in the act giving the remedy to the injured 
 servant, to whom such remedy was given, in order to 
 enforce and conserve the act, and since the act now before 
 the Court makes no specific rule for the regulation of 
 commerce, therefore the cases which are cited are not 
 applicable. 
 
 The position is not tenable. The present act, you will 
 find, in one of the sections, enforces and conserves in 
 express terms every statute enacted for the safety of 
 •employes as fully as if the same were set forth in this act. 
 The rule of liability which may be sustained if contained 
 in an act laying down a specific regulation of Congress 
 will also surely be sustained if its purpose is to enforce 
 and conserve such a statutory regulation though laid 
 down in other statutes. The Johnson and Schlemmer 
 cases show then that Congress may modify the doctrine 
 •of assumed risk as a method of enforcing the Safety 
 Appliance Act when contained in a section of such statute. 
 All that is done here is merely to repeat it. An inde- 
 pendent statute having the same purpose and effect will 
 surely be upheld, if enacted for the safety of employes. 
 So I believe that that question has been foreclosed. 
 That is, that Congress has the power to abolish the doc- 
 trine of assumed risk in cases where the violation of a 
 
31 
 
 safety statute contributed to the injury. That is all that 
 is attempted in this act in that particular. 
 
 And now as to the last proposition: Has Congress 
 power to declare void a contract of employment which 
 releases in advance actions for negligence? This act does 
 not prohibit the making of the contract. It simply says 
 that a contract made by a railroad, the purpose of which 
 is to relieve itself from the liability here imposed, shall 
 be invalid. Has Congress the power to make a provision 
 of that kind? Well, it seems to me if we can get past the 
 first inquiry ; if we decide that Congress has the power to 
 regulate the relation; if it has the power to fix a rule 
 ■of public policy, then it can declare invalid any contract 
 made with a view of escaping that regulation or violating 
 that public policy. There is no provision in the United 
 States Constitution against Congress impairing the obli- 
 gations of a contract, as is found in the prohibition 
 against the State. There is nothing to prevent the Con- 
 gress of the United States passing a law that impairs the 
 obligations of your contract and mine that we may 
 already have. The provision as to Congress is not the 
 •same as to the State, and I only need to cite the Mitchell 
 •case, no U. S. 633, where the Court said particularly 
 that. 
 
 In the Armour Packing case it was contended that the 
 •carriers could change the pubHshed rate by contract; 
 .and that any provision of law prohibiting the same 
 was a violation of the freedom of contract. Mr. Justice 
 Day disposed of that and cited the case of the New Haven 
 Railroad Co. against the Interstate Commerce Commis- 
 sion, which more fully disposed of it. Examine the Legal 
 Tender Cases on that question. 
 
32 
 
 Now if the contracts are made subject to the power 
 of Congress to regulate commerce, then surely Congress 
 can provide a rule of public poHcy and declare void all 
 contracts made to avoid its terms. I say, if Congress can 
 pass a law which impairs the obligation of a contract, 
 then surely it can lay down a rule of public policy and 
 say that any contract made to evade it shall be considered 
 as void. If this contention is sound here; if Congress 
 cannot say that contracts are void which release in ad- 
 vance actions for negligence ; if that contention is sotmd, 
 why, then a departure from the published tariff rates 
 could be made. What is the difference, or the distinction, 
 in principle? It is decided in the 204th U. S. that where 
 it has been provided that published tariff rates should be 
 filed, that any contract made to violate that or to evade 
 it is contrary to public policy, and therefore shall be 
 deemed to be void. 
 
 The power to pass that statute has been upheld in a 
 long line of cases relating to pubhshed tariff rates. It 
 seems to me this provision rests upon the same principle. 
 Congress can prohibit contracts in restraint of trade. 
 That is done to regulate commerce. Some may object 
 to it as a police power, exercised by Congress. I know 
 it is frequently said that Congress does not have the police 
 power. But it can exercise police regulations. The 
 Lottery Cases and the long line of citations there, and 
 the Northern Securities case, shows that the power it 
 can exercise in regulating commerce, by whatever name 
 you desire to call it, is great enough to accomplish the 
 purpose. No one will contend that a person can make 
 a contract in violation of public policy. After Congress 
 
33 
 
 has laid down a rule of public policy it has the power 
 to say that a contract made to defeat it and to escape 
 the liability that it imposes must be held to be void. 
 
 Let us see about the Irrawaddy case. What was done 
 there? It was the reverse of the thing done here. The 
 Courts had laid down the common law rule as to a ship' 
 owner's liabihty and said that any contract made tO' 
 limit that liability should be invalid. Congress passed 
 an act and said, "We will change that rule of public 
 policy and we will say that ship owners may limit their 
 liability. We will say that that old common[rule shallpot. 
 be in existence any longer, and that such contracts made 
 now shall be valid." Well, now, this is a question of 
 power. If Congress has the power to validate contracts 
 formerly against public policy, it certainly has power 
 to declare invalid contracts forrherly valid. What was 
 said in that Irrawaddy case? Mr. Justice Shiras in deliv- 
 ering the opinion of the Court used this language : 
 
 " Doubtless, as the law stood before the pas- 
 sage of the act, the owner could not contract 
 against his liability and that of his vessel for 
 loss occasioned by negligence or fault in . the 
 officers and crew, because such a contract was. 
 held by the Federal courts to be contrary to 
 public policy, and, in this particular, the own- 
 ers of American vessels were at a disadvantage 
 as compared with the owners of foreign vessels, 
 who can contract with shippers against any lia- 
 bility for negligence or fault on the part of the 
 officers and crew. This inequaHty, of course, 
 operated unfavorably on the American ship 
 owner, and Congress thought fit to remove the 
 
 3 
 
34 
 
 disadvantage, not by declaring that it should 
 be competent for the owners of vessels to ex- 
 empt themselves from liability for the faults of 
 the master and crew by stipulations to that 
 effect contained in bills of lading, but by en- 
 acting that, if the owners exercised due dili- 
 gence in making their ships seaworthy and in 
 duly manning and equipping them, there should 
 be no liability for the navigation and manage- 
 ment of the ships, however faulty. Although 
 the foundation of the rule that forbade ship 
 owners to contract for exemption from liability 
 for negligence in their agents and employes was 
 in the decisions of the Courts that such con- 
 tracts were against public policy, it was never- 
 theless competent for Congress to make a 
 change in the standard of duty, and it is 
 plainly the duty of the Courts to conform in 
 their decisions to the policy so declared." 
 
 Now that would seem to settle the proposition that 
 Congress may interfere with common law rules in order 
 to protect the safety of commerce. 
 
 Without quoting, I want to call the Court's attention 
 to just two more decisions on this question of the power 
 of Congress to declare void any contract made to escape 
 the liability. Mr. Justice Fuller and Judges Pumell and 
 Morris, sitting as the Circuit Court of Appeals of the 
 Fourth Circuit, had occasion to pass on this subject 
 in relation to the South Carolina statute. It was urged 
 in that case on the part of the railroad company that 
 the contract constituted a good defense to the action, 
 and it was contended by counsel for the defendant that 
 the South Carolina statute operated to invalidate such 
 
35 
 
 a contract. It was held that the contract was not valid, 
 but the Court then considered the Federal statute, and 
 said: 
 
 "with respect to the validity of the contract 
 under the South Carolina statute, it is to be 
 noticed that it does not forbid making such a 
 contract, but, having been made, the statute in 
 terms requires the employer to pay the employe 
 the amount of benefits to which by the contract 
 the employe is entitled, and then provides that 
 notwithstanding the acceptance of payment the 
 employer shall still continue liable to the em- 
 ploye, if the injury was caused by negligence 
 of the employer, to the same extent as if the 
 employe had not elected to accept and been paid 
 the benefits of the contract." 
 
 The Court further said that this provision is not found 
 in the Federal statute, and after discussing it, used the 
 following language : 
 
 "This provision would seem to afford an ele- 
 ment of fairness and equality, which the South 
 Carolina statute lacks, in that it does not re- 
 quire one of the parties to the contract to fulfill 
 his obligations and release the other party." 
 
 Section three of the act of Congress of June ii, 1906, 
 the first Employers' LiabiHty Law, mentioned in the 
 above opinion, is practically the same as section five 
 of the present act. It therefore appears that while the 
 Court held that the contract was not void under the 
 South CaroHna statute, it clearly indicated that a statute 
 drawn upon the lines of Section three would operate to 
 invalidate any contract made by a carrier to exempt 
 itself from such a liability as was created by Congress 
 by this act. 
 
36 
 
 So we understand from that how Mr. Justice Euller 
 feels about this proposition and this identical section of 
 the act. 
 
 Now again, Mr. Justice Stafford of the Supreme Court 
 of the District of Columbia has passed upon this identical 
 question. It is found in the brief, and I shall do nothing- 
 more than refer to it. ' 
 
 It seems then that from every point of view this act 
 ought to be upheld ; that it is not repugnant to the Con- 
 stitution, and does not violate any of the inherent rights 
 of the citizens. It is a valid exercise of the power of 
 Congress to regulate commerce. That power extends to 
 all the means and instruments of commerce; it extends 
 to the regulation of the relation between the carrier and 
 the employes who move the commerce. If the estab- 
 lishment of a stricter rule of liability means making more 
 safe the commerce of the land, then the power of Con- 
 gress to pass the act exists. If the common law rule is not 
 found to be a proper expression of public policy, the rule 
 may be changed. It is a proper function of legislation. 
 No vested interest is disturbed. No property right is. 
 taken away. Having power to pass the legislation, to regu- 
 late the subject matter, as has been held in these cases. 
 Congress may make the classification. Having fixed the 
 public policy, it is not powerless to enforce it, and it can 
 therefore declare void all contracts made to evade its- 
 terms. 
 
 In conclusion I want to say that I have just received a 
 message that United States Judge Trieber, of Little 
 Rock, Arkansas, yesterday held this act constitutional,. 
 
37 
 
 in the case of Grace Watson vs. The St. Louis, Iron 
 Mountain & Southern Railway Co. I would like very- 
 much to have the opportunity of presenting to this Court 
 a certified copy of Judge Trieber's opinion. I can get it 
 in a few days, if the Court would like to examine it. 
 Just yesterday he held the act constitutional. 
 
 Court: No objection. Please give me the name of 
 case. 
 
 Mr. Harrison: Grace Watson vs. St. Lotiis, Iron 
 Mountain 8^ Southern. 
 
 Now I feel that I should apologize to the Court for the 
 extended time that I have taken, but. this is a question 
 which is of great public concern. We have appeared here 
 to-day, not for the purpose of assisting the plaintiff to 
 recover in this case at all, but merely because a whole- 
 some and important act of Congress, passed for the pro- 
 tection of a large body of people engaged in interstate 
 commerce, and as we believe for the safety of interstate 
 commerce, has been challenged. I thank you for having 
 the opportunity of participating in the argument. 
 
 Chief Justice Baldwin: May, I ask you one question? 
 Turn to section 5 of the act on your brief. I notice a pro- 
 vision there for a set-off under certain conditions. Now in 
 some of the states a set-off is not allowed in actions of that 
 character, and would this section change the judicial 
 procedure under such a statute with respect to such 
 actions, so that that set-off could be pleaded under 
 section five? 
 
 Mr. Harrison: While I am^not prepared to answer 
 that fully and completely, L should think to that extent 
 
38 
 
 it would. The South CaroKna statute was indeed held 
 invalid because it did not contain the provision herein 
 contained. You will find in examining Mr. Justice Fuller's 
 opinion I have just cited here that he says that this pro- 
 vision seems to be fair and equitable. I may say that 
 there will probably be many questions of procedure 
 coming up in regard to this act that I am not prepared 
 at this time, Your Honor, to answer. 
 
 Chief Justice Baldwin : Of course it would bear on this 
 situation if it is a possible construction that this statute 
 was made to apply only to the Federal Courts and not 
 to the State Courts. 
 
 Mr. Harrison: Well, in this case I understand that 
 question has been determined, hasn't it? 
 
 Mr. Perkins : Yes, I might say, if the Court please, that 
 in this partictdar action that question was determined 
 in the prior demurrer, in favor of the plaintiff, and no 
 appeal was taken on that; it doesn't enter into the case. 
 I know, if the Court would like me to say in answer to 
 the Chief Justice, that even though not strictly pleadable 
 as a set-off it would be admissible in evidence in reduction 
 of damages, at least, without regard to any plea. 
 
39 
 
 ORAL ARGUMENT OF MR. EDWARD D. ROBBINS, 
 COUNSEL FOR THE NEW YORK, NEW 
 HAVEN AND HARTFORD RAILROAD 
 COMPANY. 
 
 May it please the Court : This case is pecuniarily im- 
 portant to the parties before you, and it may become a 
 precedent of enormous pecuniary importance to others. 
 But I recognize that what is probably uppermost in the 
 minds of this Court is that the case may become a land- 
 mark in the historical delimitation of the powers of the 
 States and of the Federal Government. Indeed, I find my- 
 self forgetting that there is for me any element of respon- 
 sibility of lawyer to client, so far as the issues of this case 
 are concerned, because of my own overshadowing interest 
 in the possible effect of this case upon the constitutional 
 jurisprudence of this country. I hope the Court will in- 
 dulge me, if in view of the nature of this case and in 
 view of the careful brief filed by other counsel with its 
 full consideration of the authorities, my own oral argu- 
 ment shall be principally occupied with a more general 
 discussion of principles than would ordinarily be ex- 
 pected. 
 
 The Court below has held that the Federal statute, on 
 which this case was brought, is contrary to the Constitu- 
 tion of the United States. It is impossible to intelHgently 
 
40 
 
 consider the question whether this statute is vaUd under 
 the Constitution of the United States without first thor- 
 oughly understanding the statute. 
 
 This statute is in one small part a statute dealing with 
 consequences that justly follow from a person's own 
 wrong. This part of the statute is the last clause of 
 section one, in which it is provided that liability to certain 
 employes of a certain employer shall follow from the em- 
 ployer's own negligence. In the main, however, the stat- 
 ute, although apparently dealing with the law of torts, 
 is really acting upon the contract of employment. 
 
 English and American lawyers are used to the doctrine 
 of respondeat superior — so used to it that they do not 
 always remember upon what a narrow ethical basis this 
 doctrine is founded. It is a well known fact of social 
 psychology that a rule or custom to which any tribe or 
 people is accustomed, generally meets with moral ap- 
 proval ; and that many things which are shocking to the 
 moral sense of another tribe or people are approved by 
 the men of such tribe because they have always been used 
 to them. 
 
 Let me illustrate whst I want to point out. In many 
 farming districts it is usual for farmers when not pressed 
 with work upon their own farms to hire out for day's 
 wages to other farmers who are so pressed. Smith one 
 day may work for Meyer, and the next day Farmer Meyer 
 may work for Farmer Smith. Now suppose while Farmer 
 Smith is for day's wages carting Farmer Meyer's wheat 
 to market. Farmer Smith runs over a child. His neg- 
 
41 
 
 ligence is clear — it is a wrong; and from that wrong, 
 according to principles of natural justice, there flow 
 ■consequences to the wrongdoer in his relations to the 
 person wronged. But Farmer Meyer, for whom Farmer 
 Smith was that day working, has done no wrong. He 
 has employed a competent man, has furnished him a 
 good horse, safe to drive, and a proper wagon, and has 
 sent him on a proper errand. Yet according to the rule 
 •of respondeat superior he is liable for the consequences 
 of a wrong in which he had no part, and which is in no 
 just sense attributable to him. It may be that he will 
 be liable in damages for more than the value of his farm 
 for an act — for a wrong, of which he was absolutely 
 innocent. 
 
 The rule of respondeat superior is not old in the English 
 law. Before the time of Lord Holt the cases applied a 
 very different rule, which is approximately stated in the 
 maxim: "Qui facit per alium facit per se." You will find 
 in a volume of the Harvard Law Review (I think the 7th) 
 all the earlier cases carefully collected by Prof. Wigmore. 
 They make it clear that prior to 1700 this doctrine of 
 respondeat superior was not a part of the English law. 
 
 The Latin form of the phrase makes people think that 
 the doctrine of respondeat superior was a part of the Roman 
 law. But there was no such doctrine in the Roman law. 
 The maxim which expressed the rule of the Roman law 
 was this: "Culpa tenet suos auctores tantum." The 
 "wrong renders liable its authors only. 
 
 There is no such general rule as ours in the law of 
 Austria or of the German Empire. In the Imperial Civil 
 
42 
 
 Code of Germany the rule is that a master is liable for the 
 wrongs of his servants, only when he is unable to show 
 that he himself was free from fault either in the employ- 
 ment of the servant or in the materials which he furnished 
 him or in superintendence of the work. I read the text 
 of the German Imperial Civil Code in a good translation : 
 ' 'A person who employs another to do any work is bound 
 to compensate for any damage which the other unlaw- 
 fully causes to a third party in the performance of his 
 work. The duty to compensate does not arise, if the 
 employer has exercised ordinary care in the selection of 
 the employees, and where he has to supply appliances or 
 implements or to superintend the work, has also exercised 
 ordinary care as regards such supply or superintendence, 
 or if the damage would have arisen, notwithstanding the 
 exercise of such care." 
 
 This rule "respondeat superior," has given great difficulty 
 to philosophical writers on jurisprudence and to judges. 
 In one great case, Lord Cranmouth justified the rule on 
 the ground of the solidarity of employer and employees in 
 their relations to independent third parties. The inde- 
 pendent third party knows them as a whole, and the 
 master must answer for the whole. But there is no such 
 sohdarity except by virtue of a legal fiction. Such a 
 fiction seems to have been natural to primitive men, and 
 is often found in primitive jurisprudence in the form of 
 a liabiHty of a community for the act of one of its members. 
 But such a rule is not founded on natural justice, since 
 it makes men who are entirely innocent answerable for 
 the wrongs of others; and progressive jurisprudence has 
 worked away from fictions of that sort. 
 
43 
 
 Another juristic explanation of the rule ''respondeat 
 superior" has been based on the suggested principle that 
 a man acts at his peril, and must be responsible for all 
 consequences of his acts. An innocent bystander is 
 injured by the carelessness of a workman building a house. 
 To be sure, the workman's master is also innocent. But 
 the suggestion is that as between two entirely innocent 
 parties, the one may be made to bear the burden of an 
 injury, who set in motion the agencies that caused the 
 injury. It needs only to be pointed out that the prin- 
 ciple thus suggested as the basis of the rule "respondeat 
 superior" has so little foundation in natural justice, that 
 it has never been generally applied in any system of law. 
 
 It seems to be thought by many who accept without 
 reflection the doctrine of respondeat superior that the 
 so-called fellow-servant doctrine is an unexplainable 
 exception to a great beneficent rule. A proper analysis 
 makes it clear that the case is fgr otherwise. So narrow, 
 upon the theory of any jurist, is the ethical basis of the 
 rule of respondeat superior, that as soon as the question 
 was fairly raised, it became apparent to the great jurists 
 of England and America, that the rule could not on any 
 tenable theory be justly extended to sustain a claim of 
 Hability of an innocent employer for a wrong done to his 
 employee by another person occupied as employee in the 
 same general enterprise with the master and with the 
 servant injured. The injured person has voluntarily and, 
 indeed, by a formal contract for a proper consideration, 
 engaged himself as one of the aggregate occupied with the 
 work in the course of which the injury happened. If the 
 employer has used due care in the selection of all who are 
 
44 
 
 ■engaged in the work, in the furnishing of materials and 
 appliances, and in superintendence of the work, he has 
 •done all that he can do to protect those engaged in the 
 work. Every employe is by contract a consenting party 
 to the doing of the work with such risks of injury to any 
 one as may still remain. 
 
 Moreover, if there are special unavoidable risks in any 
 business, these risks are naturally considered by the con- 
 tracting parties in fixing the remuneration of the employee. 
 Shall the employee be permitted to receive the money 
 which he contracts to take for incurring the unavoidable 
 risks of his occupation, and yet be allowed to repudiate 
 his own obligation to assume these risks? 
 
 Again, it is clear enough that after a master has done 
 his best to guard against injuries through his servants, 
 there remains much that other servants may do toward 
 preventing such injuries by reporting cases of carelessness 
 or wrongdoing on the part of fellow servants, and by 
 ■co-operating in other ways with the master in securing 
 all possible precautions against injuries to any one through 
 employees. It is, therefore, not merely a violation of 
 natural justice to make a raaster responsible to a servant 
 for an injury caused by a fellow servant, which no care 
 of the master could have prevented, but also a violation 
 of sound public policy, in that it diminishes the employee's 
 motives of self-interest to co-operate, as he ought to, in 
 weeding out dangerous employees from the service, and 
 in helping to establish and maintain all practicable pro- 
 visions for human safety in the work in which he partici- 
 pates. 
 
45 
 
 A more particular examination of the Act now under- 
 discussion shows how far its workings will diverge from 
 any possible application of rules of natural justice. The 
 Act provides that in certain cases of contributory negli- 
 gence (that is, negligence which is the direct cause of the 
 accident that happened, and without which it would not 
 have happened), the man who by his own negligence 
 causes the injury to himself shall receive compensation 
 at the expense of those who hold the stock of his cornpany, 
 although neither they nor any of the of&cers of the com- 
 pany are subject to any blame whatever. Take a simple 
 case that might happen any day. Suppose two engineers . 
 who have long worked together in the service of the 
 railroad are running trains on the same track. Both of 
 them carelessly mistake or disregard orders. There is a 
 collision of their trains, and both are' crippled for life. 
 Under this act the negligence of each of them would, as. 
 regards the other, be the negligence of the company; each 
 of them was equally negligent; and each of them would 
 therefore be entitled to half of the damages which he 
 suffered from an accident of which he was the direct and 
 negligent cause. 
 
 The essential injustice of this rule is aggravated by 
 the intent of this provision of the act to secure to the 
 plaintiff the benefit of all existing prejudices of any 
 juries against such corporations, by expressly leaving 
 the apportioning of the damages, in case of contributory 
 neghgence, to the caprices of the jury, free from the 
 wholesome control of the presiding judge, without which _ 
 no jury system will ever work fairly. 
 
46 
 
 I said early in my argument that in the main this 
 statute, though apparently dealing with the law of torts, 
 is really acting upon contracts of employment. The 
 liabilities of the employer under this statute are not 
 therein deduced according to any principles of justice 
 from wrongs done by such employer. What this stat- 
 ute says, in the true juridicial analysis of its substance 
 and effect, is that there shall be written by the law into 
 all contracts of employment made by certain employers 
 with certain preferred employees, an obligation of the 
 employer to pay damages in case of certain injuries 
 received by these employees in the course of their employ- 
 ment. 
 
 The act goes further. It not only says that an ordinary 
 hiring shall have put into it by the implication of the law 
 these provisions beneficial to the employee, but it says 
 that the employee himself cannot contract with the em- 
 ployer to modify these provisions. Sir Henry Sumner 
 Maine taught tts the phrase that the progress of juris- 
 prudence has been from status to contract. The tendency 
 of statutes like this is from contract to status. This 
 statute makes the position of certain preferred employees 
 •of certain employers dependent, not on that free contract 
 which is characteristic of modern liberty, but upon rules 
 fixed by law in minute particulars, not resting on true 
 principles of natural justice. 
 
 It has been said in argument by the distinguished 
 representative of the United States Government who has 
 argued this case that this act is analogous to those acts of 
 Congress which are passed to protect seamen. 
 
47 
 
 Is it possible that any member of this Court can doubt 
 that the main basis of that legislation is the notorious 
 moral weakness of "Jack ashore"? In every port of the 
 whole world it has been recognized that a seaman ashore 
 needs protection as much as a minor child ; and upon that 
 fact is mainly placed by the courts the justification of 
 those regulations of the relations between ship and seaman 
 referred to by counsel. Is it for one moment pretended 
 that the members of the Brotherhood of Locomotive 
 Engineers of the United States are to be put into a class 
 with minors, as iinfit to be trusted to make their own 
 contracts? Or can it be said, as in the case of seamen, 
 that the law forces them to go on with the duties of their 
 employment, when they do not want to? 
 
 It is also' suggested that individual employees are so 
 dependent on their wages and so helpless when acting 
 alone, that they enjoy no real freedom of contract. Is it 
 possible for anyone, outside of a cloister, to be ignorant 
 that the terms of the employment by railroad com- 
 panies of the men engaged in operating railroads are 
 everywhere fixed by elaborate contracts resulting from 
 collective bargaining with the railroad by the several 
 great railroad unions? This is not the day of tyranny 
 exercised by employers. If there is any tyranny now to 
 be feared it is rather the tyranny of trade unions. In all 
 modem bargaining they have the advantage of strength 
 of position. They rarely fail to carry their demands 
 when they have ' justice with them ; and they sometimes 
 successftiUy make demands against right and contrary to 
 the public interest. If any one is so out of touch with 
 the world's affairs as not to know the real conditions 
 
48 
 
 surrounding the contract of employment of the men 
 operating the railroads of this country, it may at least be 
 justly asked that he shall not assume without investiga- 
 tion that these employees are at a disadvantage in con- 
 tracting with their employers. 
 
 It is also suggested that the liabilities of railroad com- 
 panies to employees are to be regulated by law because of 
 the especial hazards of the business. It might be an- 
 swered that a part of the pay of the employees is, in the 
 nature of things, given to compensate for such hazards, 
 and that the great railroad orders are quite capable of 
 exacting pay sufficient to cover the special hazards in- 
 curred by their members. But no such answer is needed, 
 inasmuch as this particular legislation cannot fairly be 
 said to be based on the existence of peculiar hazards in 
 the employment regulated. The statute clearly applies 
 not only to those employed in operating railroads, but 
 also to the clerks in the auditor's offices, who form the 
 most numerous class of railroad men employed in inter- 
 State commerce, and to many other classes of employees 
 who confessedly are no more subject to special hazards 
 than the clerks of any dry goods store on Chapel street in 
 New Haven. 
 
 Whether this statute is thought of as really regulating 
 the law of torts or as really regulating certain contracts of 
 employment, it cannot be conceded to be an attempt by 
 Congress to apply principles of justice to the relations of 
 employer and employed. But it is suggested that its 
 main purpose is to promote the safety of persons and 
 
49 
 
 property. There is nothing in the title of the act or on 
 the face of the act to indicate any such purpose. If there 
 was really any such purpose on the part of Congress this 
 can only be determined by a demonstration that the 
 natural tendency of the provisions of the act is to promote 
 such safety. I ask earnestly that you do not accept any- 
 one's assertion as to this matter, but that you candidly 
 and thoroughly test the reasonableness of the claims that 
 are made to this effect. 
 
 What in truth is the general nature of the conditions 
 causing railroad accidents? Upon a moment's reflection, 
 it appears that some of these accidents are absolutely 
 unforseeable, and not due to any remediable human error. 
 Such accidents clearly lie outside of the range of the pres- 
 ent discussion. The accidents which are particularly 
 affected by provisions of this act are, in the main, the 
 result of human carelessness. In nearly all cases those 
 accidents that are attributable to negligence are due to a 
 momentary lapse of attention or reflection such as even 
 careful men are liable to. There are very few men who 
 are not sometimes absent-minded. The man does not 
 live, however careful he may be by nature, who has not 
 moments when he is not careful. There is no known way 
 of preventing the accidents that result from momentary 
 lapses of ordinarily careful men. ^ 
 
 There is another class of accidents that result from the 
 conduct of a careless, reckless or incompetent man. 
 These accidents can be prevented by weeding the careless, 
 the reckless and the incompetent men out of the employ- 
 ment, and to some extent, by reforming such men. If 
 this legislation has any tendency to make railroad opera- 
 4 
 
50 
 
 tions safer, it must be because of its tendency to cause the 
 weeding out or the reforming of reckless, careless or 
 incompetent men. Has it such a tendency? 
 
 You will find — and I am coming now to matter of which 
 you may take judicial notice — you will find that there will 
 be no candid and thoughtful man in the service of any 
 railroad company in the United States, no matter what 
 his function, who will attempt to show you that this legis- 
 lation has any such effect. 
 
 The only suggestion of a possible effect of this kind is, 
 that the heavy liabilities created by this act may make the 
 employer more careful in the selection of his servants. 
 But what more inducement is needed for the exercise of 
 such care than exists in the law as it was before this act 
 was passed? The railroad companies are paying such 
 enormous sums of money every year as damages for 
 injuries, and the pecuniary inducement to take every 
 possible precaution to prevent accidents is already so 
 overwhelming, that you cannot possibly make self- 
 interest a greater motive-power. To undertake to add 
 to it would be like inducing a man to put a 200-horse- 
 power engine into his factory, when the loo-horse-power 
 engine he has there now is at all times absolutely ade- 
 quate. » 
 
 In the second place (and to this only the cloistered 
 student ought to be oblivious under existing conditions 
 on the railroads of this country), the selection of the 
 operating men for their jobs and the retention of them 
 in service have ceased to be matters within the control 
 of the managing officers of the railroads. The responsi- 
 
SI 
 
 bility for the selection of operating men and for the 
 assignment of their jobs has been in effect arrogated by the 
 several great railroad orders whose members are among 
 the very men affected favorably and preferentially by this 
 act. This is a matter of which every person who knows 
 the conditions of modern railroading must be to some 
 extent aware. It is in the newspapers. It is notorious. 
 
 Take the case of a locomotive engineer, who, of all men, 
 ought to be careful and competent. What has his com- 
 pany to say about his appointment, about his retention 
 in service, or about the particular job which he under- 
 takes? How much power of control in these respects 
 has the Superintendent, or the General Manager or the 
 President? The question need not be answered by guess- 
 work. The locomotive firemen and the locomotive engi- 
 neers of this country have notoriously forced upon the 
 railroad companies the adoption of general contracts 
 minutely establishing rights of employees in these matters, 
 which effectively interfere with the possibility of any 
 such control by managing officers as used to <.be exercised. 
 Whenever a new engineer is needed, the fireman who is 
 senior in the service of the company has a right to the 
 job. It may be the opinion of the managing officers of 
 the company that another man would be a more com- 
 petent or a more careful engineer. As things are to-day, 
 these officers have no power to give any effect to such a 
 judgment. 
 
 If there is a vacancy on the engine of a fast train, where 
 special qualities may be needed, the Superintendent may 
 think he knows just the man to run that train regularly 
 ■on time, and with least risk of accident; but he has abso- 
 
52 
 
 lutely no power to pick that man for that place. The 
 engineers in order of seniority have the right to pick the 
 runs they prefer. This job instead of going to such a man 
 as the Superintendent would like to select, may go, 
 without his power to hinder, to some engineer about 
 whose fitness for that job he feels some doubt. 
 
 Again, there may be an engineer whom the managing 
 officers of the company, in their capacity as good judges 
 of men, would like to be rid of. They are practically 
 unable to discharge him, so long as he does not actually 
 go to the length of violating the rules of the company or 
 manifest absolute incompetence. If they do discharge 
 him, he has a right to a hearing, and to one or more appeals 
 to higher ofi&cers, and to the assistance at 'the hearings 
 of men who are practically (even when not nominally) 
 representatives of the Brotherhood of Locomotive Engi- 
 neers. These assistants resist his discharge, unless his 
 violation of the company's rules or his incompetence can 
 be established as conclusively as a crime must be in a 
 police court. His discharge, or his transfer to a less 
 exacting position, on the mere judgment of the officers 
 that they could find a more competent or safer man for 
 the position, would be at the most serious risk, if not the 
 certainty, of a strike, which would disorganize the business, 
 of the railroad and of all the territory which it serves. 
 
 These illustrations might be paralleled to the same 
 effect in the case of every class of men directly concerned 
 with the operation of the railroad, whether conductors 
 and trainmen, switchmen and yardmen, or telegraphers. 
 
 I hope that some of the members of this Court may 
 happen to have read the articles on the causes of railroad 
 
53 
 
 accidents recently contributed to the Atlantic Monthly by 
 a railroad man named Fagan. He is only a signalman on 
 the Pitchburg division of the Boston and Maine Railroad, 
 but is evidently a man of unusual native ability. His 
 main thesis is that a large part of the most serious railroad 
 accidents would not happen, if railroad inen would cease 
 the practice of violating the rules of the company made 
 to secure safety of operation. Such practices would un- 
 doubtedly subject all concerned to discipline, if they were 
 reported to the superintendent, but Mr. Fagan says, and 
 says correctly, that railroad men will not report their 
 fellow employees for breaches of the rules adopted for 
 the safety of train movements. They allow things to be 
 done which, though convenient, are dangerous, and which, 
 because they do not report them, cannot be discovered 
 by the superintendent, until the negligent practice results 
 in some accident — and perhaps an awful accident. 
 
 The one chief need to-day for the safer operation of 
 railroads is a clearer appreciation by the members of the 
 great railroad unions of the responsibilities which they 
 have morally incurred throvtgh the exercise of their great 
 power in collective bargaining upon the conditions of rail- 
 road operation. 
 
 The Uability that the company may pay still more in 
 damages than it has heretofore cannot be rationally ex- 
 pected to influence railroad superintendents to exercise 
 greater care, for they have inducements enough of that 
 nature anyway. But the engineers and firemen and train- 
 men and yardmen and telegraphers need additional in- 
 ducements to contribute by reporting breaches of rule and 
 in other ways to make the operations of railroads safer. 
 
54 
 
 Instead of affording additional inducements to care, 
 this statute secures the operating men on railroads 
 against feeling the full consequences of accidents caused 
 by negligence and breach of rules on the part of their 
 fellow employees or even by their own ill-conduct. It thus 
 tends to lessen the force of the motives which might 
 induce railroad employees to help more efficiently in 
 weeding out of the service all employees who are careless, 
 reckless or incompetent, and which might lead to their co- 
 operation in reforming unsafe practices. 
 
 I respectfully submit that the more reflection is be- 
 stowed upon the present conditions of railroad operation 
 and upon the natural effect upon these conditions of the 
 provisions of the present act, the less convincing will 
 seem the suggestion that there is any nattrral tendency 
 toward an increase of the safety of persons or property 
 through the working of this act. On the contrary, it 
 seems that, so far as the statute tends at all to affect the 
 operation of railroads, its tendency is in precisely the 
 opposite direction. 
 
 In the first case which has arisen under this Act of 
 Congress (Fulgham v. Midland Valley R. R. Co., 167 Fed., 
 662) the Court has stated, as the real intent of this Act, 
 a purpose very different from those which I have 
 been considering. The Court says: "I think this Act is 
 in harmony with the purposes and recommendations of 
 the President in at least two messages, and also in har- 
 mony with what is claimed is the strong trend of the 
 public mind in nearly all civiUzed countries at this time. 
 
55 
 
 It proceeds on the theory that the railroad corporations 
 are quasi-pubUc corporations, and that the railroad 
 company, in the first place, and the public in its final 
 analysis should be insurers of the lives and persons of 
 its employes while engaged in interstate commerce, for 
 if the railroad companies are to be' the insurers of their 
 employees, they must in the end be reimbursed also by 
 their customers for whom they do the carrying business, 
 and in its last analysis their customers are simply the pub- 
 lic. The theory of this legislation is that the public should 
 share the misfortunes of the families of those who are 
 injured or killed in the quasi-public business in which 
 railroads are engaged." 
 
 [The Court here adjourned for the day.] 
 
 When the Court adjourned yesterday, I was talking 
 about the purposes of this act as stated by one of the 
 Circuit Courts of the United States. That Court, basing 
 its opinion in considerable measure on the speeches 
 and messages of President Roosevelt recommending this 
 legislation, said that the purpose of this act was what, 
 is avowedly the purpose the world over of labor legisla- 
 tion of various kinds, namely, a distribution over society 
 at large of the burdens of the accidents and injuries which 
 are necessarily incidental to modern industry. 
 
 In the rest of the world, whose example President 
 Roosevelt held up to Congress in recommending this 
 measure, labor legislation has ceased to take the form 
 Of legislation increasing the liability of employers as for 
 tort. In England the recent labor legislation has taken 
 
56 
 
 primarily the form of a compensation act; and the last 
 compensation act, the "Workmen's Compensation Act," 
 passed a short time ago (in 1906, I think), covers all 
 classes of wage earners and all classes of employers. It is 
 not based upon any fiction of a tort of the employer. It 
 provides for a compensation of workmen in cases of injury 
 in the course of their employment, dependent as to 
 amount upon the wages received, and also provides for 
 speedy and simple methods of ascertaining the amount 
 due under the act to any workman, thus securing not 
 only that the workman shall get no more than the 
 principle underlying modern labor legislation requires, 
 namely, enough to prevent the burden of the accident 
 from being a crushing one, but also that he or his family 
 shall get this immediately while the needs are the 
 greatest. 
 
 In^Germany this labor legislation takes another form. 
 For many years they have been working out by a series 
 of statutes, a system of obligatory insurance. The em- 
 ployers are required to contribute something more than 
 one-half the cost of this insurance, the State contributes 
 about one-eighth, and the workingmen the rest. 
 
 Now in order that the real bearing of all this may be 
 understood when we come to the discussion of some of 
 the questions here involved, let me briefly indicate why, 
 following out the principle which is said by the Circuit 
 Court of the United States to underlie the act now in 
 question, other countries have adopted more advanced 
 methods. They have judged, in the first place, that 
 there is no reason why the distribution of the burden of 
 loss and injury incidental to modern industry should be 
 
57 
 
 limited to the cases where there is somebody's tort, but 
 that it should cover also the cases of pure accidents. They 
 have also adopted the view that the system should cover 
 disability from illness, which is nobody's fault, and even 
 the inevitable disabilities of old age. 
 
 These measures of labor legislation, although upon the 
 •surface they appear arbitrary, are supported by the same 
 arguments by which we support measures for relief of 
 the poor. Nothing could be more socialistic in principle 
 than poor-law relief. It means that we take the property 
 of those who have property to give it to those who have 
 none ; and the only justification for this is — not the sym- 
 pathy that we have with the poor which would be no 
 justification for anything but private charity — but the 
 social necessity of keeping families from being submerged 
 — -from falling out of the ranks of the socially useftil. 
 
 Furthermore (and this bears more directly upon this 
 discussion), one reason for the preference in other coun- 
 tries of these types of legislation, namely, compensation 
 acts and the insurance acts, is that they do not, in the 
 effort to distribute burdens, accomplish such unintended, 
 illogical and unjust results as must necessarily follow 
 from mere amendments of the laws of tort. 
 
 A court, the other day, in New York set aside a verdict 
 of a jury because the damages awarded were only $25,000, 
 and because the court deemed that this amount was inad- 
 equate. I could have sympathized with that ruHng, if 
 the case had been one where the person to pay the judg- 
 ment was a person who was actually guilty of wrong; 
 but, in reality, that verdict was held insufficient in a case 
 
58 
 
 where the amount to be paid was to be actually paid by 
 persons who had done no wrong, and was to.be paid on 
 account of the carelessness of a well-selected and ordi- 
 narily -careful employe. A principle which renders a 
 judgment of $25,000 inadequate against an entirely 
 innocent person, is not defensible as a method of ration- 
 ally and impartially distributing over society as a whole 
 the crushing burdens caused by accidents incidental to 
 the working of social industry. 
 
 Suppose, for illustration of the working in this direction 
 of an act like the one now under discussion, we take the 
 case of the President of the Southern Railway Company, 
 who was killed through the negligence of the company's 
 employees on one of his own trains while engaged in the 
 business of the company and while employed in inter- 
 state commerce. I may assume that he was earning not 
 less than $25,000 a year, and that his probability of 
 business life was not less than ten years. Ought he to 
 have, on any such theory as is the real support of legis- 
 lation of this kind, $250,000 out of those who did no 
 wrong? But under this act I cannot see any escape, if 
 the law is followed, from an award to him of some great 
 sum of money at the expense of his stockholders, who 
 did no wrong. 
 
 The assumption that the burden thrown upon railroad 
 companies by this act is to be shifted on to the public 
 will hardly be assented to by economists or by men of 
 business experience. Railroad companies have already 
 established rates and arranged their business, so as to 
 earn as much money as they can. Their earning ability 
 cannot well be increased through any natural effect of a 
 
59 
 
 law that merely causes them to pay out more money in 
 damages. Such a law can have no more effect in that 
 direction than any one of the many causes which may 
 operate on any railroad to increase the expenses of 
 operation. 
 
 That the main purpose of this statute is to distribute 
 the burden of injuries incident to the operation of rail- 
 roads, has been also asserted in the argument of the 
 distinguished representative of the Attorney General 
 of the United States who has appeared in this case, 
 and is set forth in the brief of the Attorney General, 
 where it is supported by quotations from the President's 
 messages and from the reports of committees of Congress. 
 
 To "distribute burdens" means to take burdens off 
 from some persons and to put those burdens on other 
 persons, which in any case is perilously akin to a con- 
 fiscation of property. What are we to say of such a 
 "distribution" when it is not attained by a general law 
 applying to the whole public (as in the labor legislation 
 of the rest of the world, which is held up as an example 
 to us) , but by a law laying burdens on railroad companies, 
 such as are not laid in this country on other employers, 
 and by a law operating only for the benefit of certain 
 classes of their employes, thus preferred over other 
 classes, and by a law nowhere following any guiding 
 principle of ethics, of justice or of social necessity. 
 
 So far, I have been asking attention to a preHminary 
 examination of the nature and purposes of this Act of 
 
6o 
 
 Congress. I come now to consider the specific question, 
 raised by the demurrer in this case, whether this Act, 
 being what it is, can be sustained as valid law under 
 the Constitution of the United States. 
 
 The representative of the Executive Department of the 
 Pederal Government, who has appeared to argue for the 
 plaintiff in this case, has at great length in his brief and 
 to some extent in his oral argument, urged upon this 
 Court the importance and .beneficence of several pur- 
 poses which he says were purposes of Congress in this 
 legislation. 
 
 The distinguished Attorney General and his associates 
 say in their brief, to begin with, that the act is a wise 
 step toward the establishment of justice and fair dealing 
 among men. I do not believe that they could satisfy 
 you of the truth of this assertion. But in apy event, is it 
 now contended by the Executive Department of the 
 Federal Government that the general administration of 
 social justice and the establishment of fair dealing among 
 men are henceforth to be regarded as in themselves 
 within the sphere of the Federal Government? 
 
 It is said that this Act is a beneficent statute intended 
 to provide for a better distribution of the burdens of 
 industry. Is it the function of the National Government 
 to indulge in general socialistic beneficence? Are poor- 
 laws, or is any kind of legislation that rests upon the 
 same fundamental ethical principle as poor-law relief, 
 within the competence of the National Government? 
 
 Is this statute defended because it is a protection of 
 those who are weak against the strong? Such a defence 
 
6i 
 
 of this legislation will never be suggested by anyone who 
 does not shut his eyes to the actual labor conditions of 
 to-day. But in any event, unless there is a revolution 
 in the interpretation of the United States Constitution, 
 the protection of citizens against peculiar weaknesses 
 of any sort is not for the National Government, but for 
 State Governments. 
 
 Is it a purpose of this Act to provide that a certain 
 industry shall bear, as a whole, the burden of the peculiar 
 hazards of that industry? I have said that it seems im- 
 possible to bring this Act as a whole within the limits of 
 any such purpose, because the statute clearly applies to- 
 hosts of employees (indeed much more than half of the 
 total number of employees affected) who are not subject 
 to any special hazards at all. But in any event, is the 
 regulation of the burden of the hazards of a particular 
 industry a matter for the Federal Government, or a 
 matter for the Governments of the several States? 
 
 Of course no one of the numerous learned lawyers 
 who are opposed to me in this argument, undertakes to 
 constitutionally, justify this statute except as an exercise 
 of the power of Congress to regulate commerce; but all 
 this argument about the beneficence of this statute 
 must have some bearing on this case in the minds of these 
 learned counsel. It has appeared more clearly in this 
 case than I have ever known it to appear before, except 
 outside of court-rooms, that the Attorney General of 
 the United States and his assistants are deliberately 
 undertaking to extend the Federal Power into fields 
 that confessedly do not in themselves lie within its con- 
 stitutional domain, by means of an uncandid use of the 
 
62 
 
 congressional power to regulate commerce, namely, a use 
 of that power as a pretext for legislation really intended 
 for some other purpose. 
 
 The learned gentleman who preceded me, in his eager- 
 ness to sustain the general scheme of procuring legislation 
 regarding labor from Congress, through the use of a power 
 to regulate commerce never granted for such an end, 
 has laid down doctrines as to the extent of that power 
 which are little, if at all, short of revolutionary. His 
 main position is, that Congress has the same powers over 
 railroads engaged in interstate commerce that it has over 
 the navigable waters of the United States, and the ships 
 thereon. He has not directed this Court to any case in the 
 Supreme Court of the United States, or to any declaration 
 of the Fathers to show that such is the Constitutional law 
 of the United States. 
 
 Let us see what this proposition means. The South 
 Manchester railroad, though only about three miles long 
 and of course distant from the State boundaries, is an 
 instrumentality of interstate commerce. It is a common 
 carrier. Raw silk one way, and silk goods the other way, 
 are constantly passing over it, and between its terminus 
 and a dozen points outside of .this State. All this raw 
 material comes from without the State, and most of these 
 manufactured goods go without the State. The South 
 Manchester railroad is, therefore, an instrumentality of 
 interstate commerce, and the Executive Department of 
 the Federal Government says that Congress can regulate 
 such an instrumentahty in any way. Such has not 
 been supposed to be the law. It was understood . 
 when the Constitution was framed that one of its pur- 
 
63 
 
 poses was to protect the freedom of navigation on 
 the public waters of the United States. Was it sup- 
 posed that the same jurisdiction that existed over the 
 world's highways, furnished by nature, existed over the 
 highways of a state, which were as truly pathways of 
 interstate commerce and instrumentalities of interstate 
 commerce as are the railroads of to-day? It was never 
 thought of. It ought not now to be thought of. Juris- 
 diction may be entertained over the public waters of the 
 United States by the Federal Government without trench- 
 ing on the natural sphere of the State governments. Thei'e 
 are infinite reasons for uniformity of regulation upon those 
 waters that do not exist within the domain of private 
 landed property. You could not regulate highways, you 
 could not regulate canals, you could not regulate railroads, 
 without removing from the sphere of regulation of State 
 Governments an immense mass of jurisdiction which has 
 always been held peculiarly appropriate to be exercised 
 by the States. If the gentleman's contention is correct, 
 it is open to Congress to establish a National Board of 
 Railroad Commissioners, which shall supersede at 
 least nine-tenths of the functions now exercised by the 
 Railroad Commissioners of the several States. The 
 elimination of grade-crossings, the provisions for the 
 double-tracking of railroads— a thousand and one things 
 that have always been within the domain of State sover- 
 eignty, are removed within the pale of National adminis- 
 tration. 
 
 Is the case of Railroad vs. Maryland to be forgotten? 
 I haven't much time to read to the Court from reported 
 cases, but let me read briefly from this opinion — if I can 
 find the reference. Here it is — 88 U. S., 456. 
 
64 
 
 "Commerce on land between the different 
 States is so strikingly dissimilar, in many respects, 
 from commerce on water, that is it often difficult 
 to regard them in the same aspect in reference to 
 the respective constitutional powers and duties 
 of the State and Federal Governments. No doubt 
 commerce by water was principally in the minds 
 of those who framed and adopted the Constitu- 
 tion, although both its language and spirit em- 
 brace commerce by land as well. Maritime 
 transportation requires no artificial roadway. 
 Nature has prepared, to hand, that portion of the 
 instrumentality employed. The navigable waters 
 of the earth are recognized public highways of 
 trade and intercourse. No franchise is needed to 
 enable the navigator to use them. Again; the 
 vehicles of commerce by water being instruments 
 of intercommunication with other nations, the 
 regulation of them is assumed by the National 
 Legislature. So that State interference with 
 transportation by water, and especially by sea, 
 is at once clearly marked and distinctly discern- 
 ible. But it is different with transportation 
 by land. This, when the Constitution was 
 adopted, was entirely performed on common 
 roads, and in vehicles drawn by animal power. 
 No one at that day imagined that the roads and 
 bridges of the country (except when the latter 
 crossed navigable streams) were not entirely 
 subject, both as to their construction, repair and 
 management, to State regulation and control. 
 They were all made either by the States or 
 under their authority. The power of the State 
 to impose or authorize such tolls, as it saw fit, 
 was unquestioned. No one then supposed that 
 the wagons of the country, which were the 
 vehicles of this commerce, or the horses by which 
 they were drawn, were subject to national 
 regulation." 
 
65 
 
 The Court goes on to point out that when canals came 
 to be built, no one supposed that they were within the 
 sphere of national jurisdiction, and affirms that the 
 State of Maryland has jurisdiction over the railroads 
 within its borders, although they are parts of a railroad 
 system extending into several states. 
 
 The gentleman who preceded me has even advanced to 
 you, in his brief and in his argument, the contention that 
 the construction and maintenance of a railroad — the South 
 Manchester railroad for example — is a subject for National 
 regulation. It may be that the Supreme Court of the 
 United States will some day say so. It never has said so. 
 So far as it has made any utterances on the subject, they 
 are not consistent with the view expressed here by the 
 Executive Department of the United States. 
 
 Another main contention of Mr. Harrison I want to 
 discuss before I come to the more specific questions of this 
 case. It is contended by him that the power over inter- 
 state commerce of the Federal Government is so para- 
 mount that legislation may be justified under it which 
 seriously affects intrastate commerce — the domestic com- 
 merce within the States. Now I think that such a view, 
 whether as entertained by counsel in this case, or as 
 expressed by others, is based generally upon a supposition 
 that the powers granted to the Federal Government are 
 paramount over the powers reserved to the State Govern- 
 ■' ments. I regard such a doctrine as a heresy. The Con- 
 stitution of the United States, and the laws passed in 
 accordance therewith, are paramount. But in my view 
 of the Constitution of the United States, it protects the 
 legitimate powers of the State Governments as fully as it 
 5 
 
66 
 
 • 
 
 does the legitimate powers of the Federal Government. 
 One class of powers is as sacred as the other under the 
 Constitution of the United States. What power is more 
 paramount than the Congressional power of taxation? 
 But what did the Supreme Court of the United States 
 say when Congress, in the stress of war-times, undertook 
 to tax the processes of the courts of the States? "Oh," 
 they said, "that power of taxation is not thus paramount; 
 it cannot be exercised to interfere with the legitimate 
 functions of the Governments of the States." The 
 ■Constitution and its purposes are paramount, but one of 
 its main purposes is to delimit the functions of the two 
 ■elements of our dual Government — to delimi'^ the func- 
 tions of the Federal Government, and the ftmctions of the 
 State. If any purpose of the Constitution is paramount 
 over all, it is that purpose. 
 
 I repeat that it is the Constitution and its purposes 
 which are paramount, and not certain powers of Congress. 
 I agree, however, that when the Constitution is read 
 in the spirit of a statesman, as it must be by Courts, there 
 are certain main purposes to which other purposes of 
 government may rightfully be declared subordinate, in 
 case of conflict. It is impossible for a student of our 
 historical constitutional development to doubt that one 
 of the main purposes of the Constitution is to maintain 
 the freedom of the flow of interstate commerce. When a 
 State has undertaken to tax the carriage of passengers or 
 freight across its borders, that action has been declared 
 unconstitutional — not because the power of Congress to 
 regdlate cornmerce was paramount over the power of the 
 State to tax — ^but because a main purpose of the Constitu- 
 tion was paramount over the purposes involved in such 
 
67 
 
 legislation, and because it is necessary to limit the exercise 
 of any power of State government which shall interfere 
 with one chief, great, main purpose of the Constitution, 
 namely, to prevent hindrance by any State to the passage 
 of commerce through it, to and from other States. What 
 is paramount is that purpose of the Constitution, and not 
 a power of Congress. 
 
 The limitations similarly placed on quarantine regula- 
 tions by States are similarly justified. The State of 
 Arkansas made a law for the quarantining of cattle to check 
 the spread of disease, which in the opinion of the Supreme 
 Court of the United States was in its tendency an impedi- 
 ment to the proper flow of commerce. That law was 
 declared unconstitutional — not because the power of 
 ■Congress to regulate commerce was in and of itself su- 
 perior to the police power of the State of Arkansas; but 
 because the purpose of the National Constitution to pre- 
 serve the freedom of commerce was paramount in limita- 
 tion of such legislation. 
 
 The Safety Appliance Act, which isreferred toby counsel, 
 is to my mind sometimes put upon too narrow a ground 
 ■of defense. Why was it legitimate for Congress to pass 
 that act? Was it merely because it tended to make travel 
 safer? There was much more than that to justify it. It 
 is necessary for safety that there shall be an automatic 
 form of coupling and that there shall be air-brakes. But 
 there are a great many varieties of couplings. There are 
 differences in air-brakes. If Connecticut authorities 
 ■choose one form of coupling for their cars and New York 
 authorities another for their cars, you cannot make up 
 .a train with automatic couplings out of Connecticut and 
 
68 
 
 New York cars. But it is a fact that the freight cars of 
 this country pass from California to Maine, over the rail- 
 roads of many companies, and form an element in all 
 trains. Here then is a case where there can be no proper 
 regulation, no proper removal of an impediment to inter- 
 state commerce through State legislation. Without 
 Congressional action, there can be no enforcement in this 
 field of legislation of a main purpose of the Consti- 
 tution, namely, to secure the most uninterrupted and 
 safest flow of commerce. The complete justification of 
 the Safety Appliance Act lies in this consideration — that 
 imiformity of legislation throughout the country was re- 
 quired, in order that interstate commerce might flow most 
 freely and securely, and that therefore it was within the 
 province and duty of Congress to make such legislation. 
 
 I do not agree that where some plain purpose of the 
 Constitution does not prevail to limit the exercise of State 
 power. Congress can trench upon the sphere of govern- 
 ment of the States, simply because it can be claimed that 
 the legislation in question is a regulation of commerce. As 
 I see it, the question is — not whether a power of Congress 
 is paramount over a power of a State legislature — but 
 whether under the great purposes of the Constitution, the 
 power of a State to regulate in all their minutiae the 
 domestic affairs of its citizens should in a particular case 
 be limited by the necessity of protecting the flow of com- 
 merce between the States. I make few limits to this 
 power of Congress to regulate commerce, or to the ex- 
 clusiveness of it, when the question really is of protecting 
 the freedom of the flow of commerce across State bound- 
 aries ; for I say that any historical student knows, and any 
 reflective philosophical student knows, that that is and 
 
69 
 
 ought to be recognized as a main purpose of the Constitu- 
 tion. But I see nothing sacred in the power to regulate 
 commerce that makes it superior in itself, and where that 
 main j^urpose of the Constitution does not exist, over the 
 power of the State to regulate the affairs of its citizens in 
 the ordinary relations of life. On the contrary I believe 
 it to be the most important and fundamental purpose of 
 the Constitution of the United States to protect from 
 interference by either element of our dual government the 
 lawful sphere of the other; and that this purpose should 
 control and limit any attempted invasion of the sphere of 
 State Governments by Congress under the guise of a 
 regulation of interstate commerce, when the real purpose 
 of the act in question is essentially unconnected with 
 such commerce. 
 
 I come now to the specific question whether this par- 
 ticular Act, which as yet has never been passed on by any 
 appellate court, is fairly to be sustained as an exercise of 
 the power of Congress to regulate commerce. 
 
 I 
 The gentlemen who so contend, begin by arguing that 
 
 the constitutionality of this Act has been determined in 
 
 the Howard and Adair cases. But in both those cases it 
 
 was the unconstitutionality, and not the constitutionality 
 
 of Congressional legislation that was determined by the 
 
 Supreme Court of the United States. This Act was not 
 
 then before theCourt, and the languageused in the opinions 
 
 of justices could not have been used with reference to the 
 
 provisions of this Act of Congress, since it was not then 
 
 in existence. 
 
70 
 
 But it is argued that it has been determined that any 
 regulation of the relations of a master and servant engaged 
 in interstate commerce, is a regulation of such commerce, 
 and therefore within the powers of Congress. I do not 
 so understand. 
 
 I understand the language in question, which was used 
 by Mr. Justice White in the Howard case, to be negative 
 and not affirmative in its intent. I understand Mr. 
 Justice White to deny the universal validity of the prop- 
 osition, seemingly urged on the Court, that a regulation 
 of the relation of master and servant is necessarily beyond 
 the power of Congress So far, I, at any rate, should 
 never have hesitated to go in a legal opinion. I see nothing 
 particularly sacred about the relation of master and 
 servant, which renders it absolutely beyond the reach of 
 Federal control. In any case where Congress needs to 
 affect the relations of master and servant in order to 
 protect the free flow of commerce, I should have said un- 
 questionably that Congress had a right to so legislate. 
 
 Mr. Justice White did not hold in giving the opinion in 
 the Howard case that the act before the Court was con- 
 stitutional; and he had never seen this act which is now 
 before this Court. He did not say, as is said here, in 
 argument, that every regulation of the relation of master 
 and servant was a regulation of commerce. He did not 
 say, as is said here, that every regulation of the liability 
 of employer to an employe engaged in interstate com- 
 merce is a regulation of commerce. He simply, speaking 
 for the Court, refused to hold that it could not possibly 
 be a regulation of commerce. 
 
 In the Adair case, the very essence of the decision is, that 
 while a regulation of the relation of employer and employee 
 
71 
 
 may be peralissible to Congress, if it is a regulation of 
 commerce, it must be shown to be a regulation of com- 
 merce, before it can be thus sustained. And the Court 
 expressly holds, that it must bear some apparent and 
 logical relation to the flow of commerce in order to be 
 thus sustained. 
 
 I accept the doctrine of the Howard case and the Adair 
 case, as I must, but I do so willingly; and I suggest that 
 the question under the doctrine of those cases for this 
 Court to determine is, whether this act, now in question 
 for the first time, so regulates the relation of employer 
 and employee, so regulates the liability of employer to 
 employee, that it is in fact and substance a regulation of 
 commerce. 
 
 A distinguished lawyer in Massachusetts, in giving a 
 private opinion, used this language: "This statute has 
 no more effect on commerce than would a law requiring 
 all freight cars to be painted pea-green, or all brakemen 
 to part their hair in the middle." 
 
 You have no case here, please bear in mind, where 
 Congress has said that it is endeavoring to promote the 
 free flow of commerce. There is nothing in this act to 
 indicate that it is even concerned with the safety of 
 travel. Its title is "An act to regulate the liabiHty of 
 employer to employes," and the whole burden of the 
 act, from beginning to end, renders it necessary to admit 
 that this title is completely and fully descriptive. You 
 cannot examine this act carefully and candidly without 
 at least suspecting that it was passed under pohtical 
 pressure, brought to bear by men having lots of votes. 
 
72 
 
 on the eve of a campaign, in order to secure advantages 
 for themselves as against a certain set of employers who in 
 most of the country have little political influence. At 
 any rate, you cannot doubt that the main purpose of 
 this act was to give advantages to employees of a certain 
 preferred class against a certain set of employers, and 
 you can find nothing in the act from beginning to 
 end (with the exception of the one section about the 
 Safety-Appliance act) to indicate that the body of the 
 act has anything to do in the mind of Congress with the 
 safety of travel. You are not hampered, therefore, by 
 any pretense of Congress that this is other than an act 
 passed to effect certain purposes not within the general 
 purview of Congressional powers. It is open to this 
 Court to examine free from all presumptions of law, the 
 question whether there is any logical relation 'of the pro- 
 visions of this act to the constitutional purpose of pro- 
 tecting the flow of commerce between States. 
 
 I ask this Court, then, whether this particular regu- 
 lation of the liability of employer to employee, both being 
 engaged in interstate commerce, does really regulate 
 commerce. Is it logically and natturally adapted to affect 
 the flow of commerce, or to affect commerce at all? If 
 not, it is not a regulation of commerce. 
 
 The gentlemen on the other side of this argument are 
 striving hard to find some actual effect of this statute on 
 commerce. Yet there is no pretence that the statute can 
 have any such effect unless it affects safety; and the 
 learned counsel have conceded that the only possible 
 effect on safety is by indjicing the employment of men 
 who are not careless and reckless. They assume, indeed. 
 
73 
 
 that Congress has declared in this act that this is the 
 purpose of it. But Congress has not so declared. And is 
 it possible that a provision was intended against care- 
 lessness and recklessness whose result is that the careless 
 and reckless man must be paid, by one entirely innocent, 
 for the effect on the injured man of his own carelessness 
 and recklessness? Yet such is one of the provisions of 
 this act. Suppose that an engineer negligently disregards 
 an automatic signal and so derails his train by running 
 into a switch which a switchman has negligently left 
 open, and that the switchman is crippled for life by an 
 overturned car in the midst of the wreckage. Under the 
 language of this act this switchman may recover heavy 
 damages from the innocent railroad company on account 
 of an accident, of which the switchman's gross negligence 
 was the direct and proximate cause. 
 
 Again, is an act logically adapted to prevent careless- 
 ness and recklessness on the part of employees, when its 
 chief effect is to make one innocent of wrong doing — the 
 employer — liable to his employee for every act of reck- 
 lessness or carelessness of the men with whom such em- 
 ployee comes in contact every day, and whose conduct 
 he has power to influence in many ways? I submit that 
 the effect of such a law is necessarily and naturally the 
 other way, for necessarily and naturally it removes an 
 inducement to all employees, thus affected, to co-operate 
 with the company by reporting breaches of rule, so as 
 to help the weeding out of the reckless and incompetent. 
 
 If the real purpose of Congress had actually been to 
 secure safety in the operation of railroads, would either 
 of those provisions have been in this act? It is impossible 
 
74 
 
 to so believe. And the only pretense that there was any 
 such purpose in anybody's mind is the pretense that if 
 you make the railroad companies' liability heavier you 
 will make them more careful. And this in face of the fact 
 that the pecuniary inducements to get rid of carelessness 
 and recklessness are now so tremendous that you could 
 not give them greater motive power! And this, also, in 
 face of the further fact that the hiring of competent men, 
 the retention of competent men, the assignment of jobs 
 to suitable men, this country over, has by the contracts 
 between the railway orders and the railroads been taken 
 out of the hands of the managers of the railroads, and 
 been assumed by the men themselves — assumed by the 
 men themselves, who by the force of this act have their 
 motive for getting rid of the reckless and incompetent 
 weakened instead of strengthened! 
 
 No man that is familiar with the simplest elements of 
 human psychology, no man who is familiar with the 
 actual industrial conditions prevailing on the railroads 
 of this country, can, as it seems to me, venture to hold 
 that this Act of Congress is naturally, logically and 
 apparently adapted to secure from impediments the flow 
 of commerce between the States. 
 
 But there is the crux of this question. To my mind 
 this whole case may be determined just here. If you see 
 that this statute does not naturally tend to promote 
 the free and safe flow of commerce between the States, 
 then, under the doctrine of the Adair case, as well as of 
 the long line of decisions preceding that case, there is 
 no possible pretext left for holding that this law is 
 within the powers of Congress. 
 
75 
 
 I come now to another branch of the discussion. 
 If it be now conceded, for the purposes of argument, 
 (forgetting what I have just been discussing), that this 
 statute is in some respects a regulation of interstate- 
 commerce, the question still remains whether its pro- 
 visions do not also reach to other matters of regulation 
 beyond the lawful sphere of Federal power. 
 
 In the Howard case, Mr. Justice White lays stress upon, 
 the circumstance that the act then in question reached 
 by its regulations injuries caused by employees not. 
 engaged in interstate commerce. That defect has not 
 been cured in this act. This act, like the former act, regu- 
 lates the relation of the employer to an employee engaged 
 solely in intrastate commerce, by making the failure of the- 
 employer to prevent such negligence the basis of liability 
 of such employer. 
 
 This act also affects the relations of an employer to- 
 the dependent members of the family of a deceased 
 employee, none of whom were engaged in interstate 
 commerce. 
 
 Jndeed, Congress seems to have assumed in the pro- 
 visions of section one regarding injuries resulting in death, 
 to enter the field of the administration of the estates of 
 deceased persons. Does the power of Congress to regulate 
 commerce authorize it to interfere with the duties of 
 administrators appointed by the Courts of the several 
 States, or authorize it to determine whether claims of 
 
76 
 
 ■deceased persons shall inure first to the benefit of the 
 parents or the children of such person? 
 
 Mr. Hull : Brother Robbins, have you demurred upon 
 any such ground? 
 
 Mr. Robbins: The demurrer is upon the ground that 
 the act is not within the power of Congress — that it is 
 ■contrary to the Constitution of the United States. I 
 am specifying a reason for so holding. 
 
 Mr. Hull : Which paragraph of the demurrer so states? 
 
 Mr. Robbins: I think the Court will find this point 
 Tvithin'>the demurrer. 
 
 But I go much further. I say that this act, in all its 
 applications, from the first word to the last word, ex- 
 cepting, of course, section 2, in regard to the District 
 of Columbia and the Territories, affects intrastate com- 
 merce. You will take judicial notice of the fact, admitted 
 on the brief of the distinguished representative of the 
 Executive Department of the National Government, that 
 -every train of every railroad carries both intrastate 
 commerce and interstate commerce. Those whose rela- 
 tions are sought to be regulated are just as much engaged 
 in commerce within the States as they are in commerce 
 between the States. 
 
 In the case at bar, at the moment of the accident, not 
 -only was the defendant company engaged in intrastate 
 commerce as much as in interstate commerce, but every 
 employee upon the trains in question was employed by 
 "this company just as much in intrastate commerce as in 
 
77 
 
 interstate commerce. If this Act of Congress is a regu- 
 lation of interstate commerce because it is a regulation 
 of the relations of those engaged in interstate commerce, 
 it is, in the same way and to ike same extent, a regu- 
 lation of domestic commerce within the State. Therefore, 
 I say that the act, if a regulation of interstate commerce, 
 is in all its applications, at all times, a regulation just as- 
 much and in the same way, and to the same extent, of a 
 province that is by the very terms of the Howard case- 
 kept sacred from National regulation. And I will not for 
 one moment admit that the power of a State to regulate 
 the commerce within its borders is in itself inferior to- 
 the power of Congress to regulate commerce between 
 the States. Except in cases in which it can be shown 
 that the purpose of the Constitution to preserve the 
 freedom of flow of commerce, and to prevent the State 
 from impeding that flow, is actually dominant, I contend 
 that the power of the State over intrastate commerce is- 
 equal to the power of Congress over interstate commerce. 
 I contend that, unless for the great constitutional pur- 
 pose of protecting freedom of interstate commerce, uni- 
 formity of legislation is necessary, an act which, when- 
 ever it affects interstate commerce, affects in all its- 
 applications, in the same way, and to the same extent, 
 intrastate commerce also, falls absolutely within the ban 
 of the express ruling of the majority of the Court in the- 
 Howard case. 
 
 I come now to a third branch of this discussion.. 
 There remains still the question specifically raised by 
 the demurrer in this case, whether this Act of Congress,. 
 
78 
 
 ■even if its subject matter is entirely within the field of 
 •Congressional legislation, is not so framed as to violate 
 those broad principles of justice which constitute the 
 foundation of a government of law, and whether this act 
 is not therefore contrary to the " law of the land," and so 
 to the Fifth Amendment of the Constitution of the 
 United States. 
 
 In the first place, I submit that a law which takes 
 the property of one who is without fault and gives it to 
 another, in order to compensate the latter, whether in 
 whole or part, for the consequences of his own fault, 
 deprives the former of property without due process of 
 law. In the illustrations I have referred to in argument, 
 (easily varied extensively without leaving the range of 
 •ordinary railroad experience) in which two men engaged 
 in the operation of a railroad cause by their concurring 
 negligence an accident which injures one or both of them, 
 it may be that the railroad company loses heavily through 
 ■damage to its own property or through its liabilities 
 to others whose persons or property may be injured. 
 Yet it is not to be enough that the company is to be 
 subjected to what may be tremendous losses through the 
 more or less gross negligence of a trusted employee, 
 but the company must under this law also make good 
 to this employee some proportion, to be determined by 
 the caprices of a jury, of the damage which he has done 
 to himself by his own wrong against the company. 
 
 Furthermore, I submit that the liability of a railroad 
 •company, when itself without fault, to some of its em- 
 ployees for acts of other employees is at variance with 
 -well established rules of American and English juris- 
 
79 
 
 prudence based — not on positive legislation — but on 
 what has been conceived by common consent to be an 
 underlying body of principles of natural justice. It may 
 be that such rules and such principles may be constitu- 
 tionally disregarded by legislation, if the legislation affects 
 society at large through a well-considered exercise of 
 the police-power for the general welfare. But this Act 
 of Congress sets aside these rules and principles of justice, 
 and makes railroad companies responsible in damages 
 for wrongs in which they have no part, and to men whose 
 opportunity to guard against the happening of such 
 wrongs is under actual present conditions even greater 
 than that enjoyed by the general officers of the railroad 
 companies, and does this — not for the sake of some general 
 social rearrangement, nor through any important appli- 
 cation of some other guiding principle — ^but arbitrarily 
 and partially by provisions of law taking the property of 
 one class of employers only, and for the benefit of a certain 
 class of employes only. 
 
 Am I wrong in saying that this law follows no guiding 
 principle of justice? Mr. Justice Moody in his minority 
 opinion in the Howard case argued that there had always 
 been in legislation a treatment of railroad carriers as a 
 class apart. Is Mr. Justice Moody to be understood as 
 meaning that because, owing to peculiarities of railroad 
 business, certain provisions of law might be made to 
 apply to them alone, therefore any provisions of law 
 may constitutionally be made to affect railroad com- 
 panies alone That would clearly be a non-sequitur. 
 
 - Mr. Justice White, while refusing to pass on the ques- 
 tion now under discussion, referred to three cases, in 
 
8o 
 
 which the Supreme Court of the United States had sus- 
 tained under the Fourteenth Amendment to the Con- 
 stitution of the United States the laws of several States 
 regulating^ specially the liability of railroad companies 
 to their employees. I ask you to note that in the opinions 
 of the Courts of those States as to the meaning of their 
 own laws, which were conclusive and binding upon the 
 Supreme Court of the United States, it had been held 
 that those laws were to be limited in application to those 
 who were engaged in a specially hazardous occupation. 
 You will find that State Courts in interpreting their 
 own laws which on their face applied to employees of all 
 railroad companies, have held that if so construed they 
 would be contrary to the provisions of the Fourteenth 
 Amendment, and that in order to sustain these laws 
 they must be, even by straining the language, limited in 
 their application to those engaged in the hazardous 
 occupation of operating a railroad. Under this condition 
 there might be found a logical ground of singling out 
 certain employers and certain employes for certain 
 exceptional legislation. The operation of a railroad is 
 an unusually hazardous operation, and the employer 
 engaged in that unusual occupation, and the employe 
 so engaged, may because of that be treated differently. 
 
 But no such defense can be made of this act. In the 
 first place. Congress has nothing to do with the hazards 
 of an occupation. That is for the States. 
 
 In the second place, this act confessedly is not limited 
 in its applications to those engaged in the ]pperation of 
 railroads. It affects all the employees of railroad com- 
 
8i 
 
 panics engaged in interstate commerce, more than half 
 of whom have nothing to do with the operation of a 
 railroad. 
 
 If a clerk in the auditor's office who is engaged in 
 auditing the accounts of an interstate railroad, goes 
 down in the elevator of the company's office building, 
 and is injured through the fault of the operator of that 
 elevator, he gets the benefit of this act ; but an employee 
 on a local street railway, perhaps owned by the same 
 employer, who is injured at the same time, is not benefited 
 by it. 
 
 But it is urged that the powers of Congress did not 
 extend to the protection of those not employed, in inter- 
 state commerce, or to the regulation of the liabilities of 
 employers not engaged in such commerce. 
 
 In the first place, I suggest in reply that this is a very 
 good reason why Congress, being limited as it is in power, 
 should not undertake to legislate where it cannot legis- 
 late justly. It may be, as suggested in that opinion of a 
 United States Circuit Court upon this act which I have 
 read from, that a just law might be framed for the pur- 
 pose of distributing widely the burden of injuries incident 
 to general industrial conditions, so that these burdens 
 should not fall with crushing weight on the particular 
 families which may happen to be the immediate victimsjof 
 these conditions. I recognize that if there were a law 
 passed for this purpose affecting all industries and embrac- 
 6 
 
82 
 
 ing all employers and all employees, it is likely that in the 
 long course of time and in a general way, most of the 
 burden immediately cast by the law on employers might 
 be thrown off on to those members of the general public 
 who pay for their services and products. But there is no 
 such tendency in the operation of any such limited law 
 as Congress could constitutionally pass. 
 
 A moment's reflection should show anybody that a 
 railroad company will not change a,, rate, whether for 
 passengers or freight, because of a law like this. Many 
 railroads are already struggling with insolvency, and if 
 there were 'any way to get more net revenue by raising 
 rates, the rates would be raised; but, generally speaking, 
 it is not the way to get net revenue, to raise rates; and 
 the net revenue of railroad companies, speaking of them 
 as a class, cannot be increased in consequence of such an 
 act as this Act of Congress. 
 
 In the second place, I suggest in reply, that Congress 
 has not attempted to follow even the guiding principle 
 of an impartial application of its legislation to all engaged 
 in interstate commerce. •> 
 
 Why does not the act apply to express companies? 
 The express messenger is subject to the same hazards as a 
 baggagemaster. Why does not the act apply to telegraph 
 companies? To telephone companies? To steamship 
 companies? Why does the act apply to railroad com- 
 panies' employees and not apply to employees of these 
 other companies? All of these other companies are 
 declared in the Howard case to be engaged in interstate 
 commerce. 
 
83 
 
 Note, furthermore, that in the last clause of the first 
 section this act differs from the former Act ^of jCongress 
 by adding the words "boats and wharves. "||The|New 
 York, New Haven & Hartford Railroad Company, it is 
 a matter of common knowledge, runs many boats, and 
 has many wharves. It runs, for example, in interstate 
 commerce from Harlem River to Jersey City. The 
 Southern Pacific runs boats from New Orleans to New 
 York. Why should there be a special UabiUty of that 
 class of owners of boats and wharves, and not of other 
 owners of boats and wharves engaging equally in inter- 
 state commerce? 
 
 I respectfully submit that in arbitrarily and partially 
 singHng out railroad companies among employers to de- 
 prive them of property in violation of weU established 
 principles of justice for the benefit of a preferred class 
 among wage-earners, Congress has violated the Fifth 
 Amendment of the Constitution of the United States in 
 that it has attempted -to deprive such companies of 
 property without due process of law. 
 
 Does any member of this Court believe that this statute 
 would ever have been passed except on the eve of a 
 Presidential election under the influence of the great 
 railway unions of this country? If this act did not 
 have so many votes behind it, would the Executive 
 Department of the United States be here, participating 
 in private litigation, for the purpose of defending its 
 constitutionality ? 
 
 If there ever was a case in which the Courts might 
 properly be appealed to, to set up the fundamental "law 
 
84 
 
 of the land" as a bulwark against the arbitrary exercise 
 of power by a democratic majority and -by elected 
 representatives who fear that majority, I think this is 
 that case. 
 
 But I am omitting one point which I intended to refer 
 to eariier. The Supreme Court of the United States has 
 established firmly the principle that the "law of the 
 land," sustained by the Fifth and Fourteenth Amend- 
 ments of the Constitution of the United States, protects 
 against legislation the right of free contract as one of the 
 fundamental, inalienable rights of the American citizen. 
 
 One of the chief vices of this statute, permeating the 
 whole of it, is that it takes away from adult men of a 
 high class of intelligence, the right to contract in certain 
 most important particulars as to the conditions of their 
 employment. 
 
 May I put one case which will perhaps especially appeal 
 to students of labor legislation. It is the tendency, the 
 world over, to substitute for employers' liability acts, 
 some form of workmen's compensation act or of work- 
 men's insurance act. Not only Germany, but also Switz- 
 zerland and Norway have adopted compulsory insurance 
 for the benefit of all ordinary wage-earners. Italy and 
 France have laws providing for voluntary systems of 
 such insurance. England has adopted not only a universal 
 workmen's compensation act, but also a workmen's 
 pension law. At a meeting of the American Association 
 of Economists held within a year, it seems to have been 
 
8s 
 
 the general opinion that the trend of labor legislation 
 should be in the direction of workmen's compensation 
 acts or workmen's insurance acts. 
 
 Now let us assume that in Connecticut, or in any of the 
 States of the Union which are deliberating on this sub- 
 ject, it may be thought wise to substitute for the present 
 system of employers' liability to employees, a widely 
 different system of one of the European types, or of some 
 still better type, and let us assume, as I think we safely 
 may, that workingmen would gladly agree to such a 
 substitution. This act of Congress forbids the men 
 affected by it to accept a contract of employment under 
 such a substituted system of protection for workingmen. 
 And who are the men thus denied their freedom of con- 
 tract? Are they morally or intellectually weak, or in 
 any way helpless? On the contrary, they are adult men 
 of exceptional vigor and intelligence, who deal with their 
 employers not by separate individual bargaining, but 
 collectively as members of the strongest labor unions 
 of the United States, industrially and politically powerful 
 beyond all other single elements in this country. 
 
 Now I lurge that the ratio decidendi of the Adair case, 
 which held that the taking away of the freedom of con- 
 tract as between employer and employe of a railroad 
 company engaged in interstate commerce was in viola- 
 tion of the Fifth Amendment, appHes fairly and fully to 
 this legislation. And for that reason, as well as for the 
 reasons first stated, I contend that this act is contrary 
 to the Fifth Amendment of the Constitution of the 
 United States. 
 
86 
 
 Mayj I, in conclusion, sum up my contentions in a 
 few propositions of constitutional law. 
 
 First, the relations of master and servant, and specific- 
 ally the liability of the master in case of injury to a ser- 
 vant, are in themselves matters for regulation by the 
 States, and are not, in general, within the sphere of the 
 National Government. 
 
 Second, from the mere circumstance that an act of 
 Congress regulates the relation of master and servant, 
 it does not necessarily follow that it may not also sub- 
 stantially affect the course of "commerce between the 
 States; and there is no peculiar sacredness about this 
 particular relation, which should hedge out the National 
 Government from dealing with it, if and when Congress 
 is truly acting under the power to regulate commerce 
 between the States, within the limits established by the 
 Constitution of the United States. 
 
 Third, the mere circumstance that persons are engaged 
 in interstate commerce does not make all their affairs and 
 mutual relations subjects for regulation by Congress, or 
 render any statute affecting the affairs and relations of 
 such persons a regulation of commerce between the 
 States, and therefore void if enacted by a State legis- 
 lature, and valid if enacted by Congress. Such a statute 
 must at least actually and substantially affect the course 
 of such commerce. 
 
 And I respectfully submit that in the application of 
 this rule lies, to my mind, a complete disposal of this 
 whole case. I cannot see that anybody, awake to facts 
 
87 
 
 and willing to face them, can believe that this act does 
 in reality affect the course of commerce between the 
 States. 
 
 Fourth, an Act of Congress may affect the course of 
 interstate commerce in some of its applications, but if 
 it has also other substantial important applications in 
 which it will not so affect interstate commerce, it is not 
 in these last mentioned applications a valid exercise of 
 the power of Congress to regulate commerce, and unless 
 sustained by some other constitutional provision, is to 
 this extent at least an invalid law. And where the appli- 
 cations of an act of Congress which are beyond the 
 power of Congress are not applications of separable parts 
 of the act, but are applications of the statute as a whole, 
 or of the particular provision in question, then this whole 
 statute, or this whole provision, is invalid. 
 
 And I respectfully submit that this act embraces pro- 
 visions without which it would never have been enacted 
 at all by Congress, which invade the sphere secured by 
 the Constitution of the United States to the Governments 
 of the several States. 
 
 Fifth, an act of Congress may directly and substantially 
 affect the course of commerce between the States, and 
 yet be invalid, if it violates the fundamental principles 
 of justice and social order upon which rests the distinc- 
 tion between an arbitrary government and a government 
 of law, so as to deprive any person of Hfe, liberty or prop- 
 erty without due process of law. 
 
 In determining whether any statute does, within the 
 meaning of the Constitution of the United States, deny to 
 
88 
 
 any person the protection of the "law of the land," the 
 judiciary will always look beyond the (form of the statute, 
 and refusing to be trammeled by fictions or technicalities 
 will consider it as constitutional statesmen, whose eyes 
 may and should be fully open to all actualities of the 
 present, and all substantial potentialities of the future. 
 
 I respectfully submit that this act, even if it is a reg- 
 ulation of interstate commerce, has been so framed as to 
 be invalid under the Fifth Amendment of the Constitu- 
 tion of the United States. 
 
 In the course of a brief reply to Mr. Hull, counsel for 
 plaintiff in the Hoxie case, Mr. Robbins afterward added 
 as follows to his argument : 
 
 The gentleman who preceded me has in his argument 
 referred to a matter which I omitted to notice before, 
 namely, the maritime rules of liability. It has been said 
 by several in argument that the rule of liability embodied 
 in this statute is the same as the maritime rule. I do 
 not so understand. In maritime law the ship is personi- 
 fied. The ship is liable. The owner is not liable beyond the 
 value of the ship. I am not very familiar with maritime 
 law, but I do not understand that the ship, or its owner, 
 is liable to one sailor for his own negligence, or even for 
 the negligence of another sailor in the common employ- 
 ment, in the absence of negligence of the owners or of the 
 officers of the ship. I understand that the main differ- 
 ence between the maritime law and the common law 
 upon this subject is that the rule of the common law 
 
89 
 
 'against ccntribution between wrongdoers does not prevail 
 in maritime law. If carelessness of a seaman, and care- 
 lessness of owners or officers representing a ship con- 
 tribute to cause an injury to the seaman, there is no rule 
 •of law binding on a court of admiralty preventing it from 
 •ordering an equitable contribution by the tininjured 
 wrongdoer toward making good the damages suffered by 
 the injured wrongdoer. I do not need to point out how 
 ■different in the justice of its working such a rule, admin- 
 istered by a coiirt of broad equitable power, must be 
 from a rule which makes a master responsible to a ser- 
 A^ant in the absence of any wrongdoing by the master ; 
 ■and which removes all restrictions on the caprice of juries 
 in awarding damages to a wrongdoer for the consequences 
 •of his own wrong. 
 
 In the second place, I understand that the maritime 
 rule is applied by the admiralty courts only to effect 
 a sharing of a pecuniary damage, such as the cost, of 
 medical attendance. 
 
 In the third place, I understand that the maritime rule 
 as stated by the Supreme Court of the United States per- 
 mits a sharing by the ship of the pecuniary consequences 
 of an injury to a seaman, only when the contributing neg- 
 ligence of the seaman is not gross or inexcusable. 
 
 Mr. Hull has somewhat misunderstood me, or he would 
 not have stated to this Court that I have indulged in 
 constitutional theories that necessarily exclude all legis- 
 
90 
 
 lation by Congress concerning interstate commerce, if 
 such legislation will affect intrastate commerce also. 
 
 I thought that I had obviated the danger of such a 
 misunderstanding, when I pointed out that Congress 
 might have to legislate concerning railroads engaged in 
 intrastate as well as in interstate commerce so as t& 
 regulate matters requiring uniformity of commercial 
 regulation. If Connecticut, for example, might pass a law 
 concerning the form of automatic couplers which would un- 
 fit the cars of a railroad corporation running within its- 
 territory for use in trains intended to pass into other 
 States, that condition of constitutional law would permit 
 the State of Connecticut to create an impediment to the 
 flow of commerce between States. Therefore, it becomes- 
 the constitutional province and duty of Congress to enact 
 a safety-appliance act for the railroads of the country. 
 
 I have said that it is a chief purpose of the Constitution 
 of the United States to secure for commerce between the 
 States all possible freedom from interruption by State 
 legislation. I did not say, and I do not mean that the 
 power of Congress to regulate commerce is limited within 
 the limits of that purpose. He would be a rash man who 
 would undertake to phrase a sentence or a page which 
 would be a full and accurate description of the limits- 
 of the power of Congress over interstate commerce and 
 commerce with foreign nations. 
 
 There may undoubtedly be an exercise by Congress of 
 the power to" regulate commerce which is not within the 
 constitutional purpose I have described. Congress may, 
 perhaps, regulate commerce between the States by ex- 
 cluding certain articles from such commerce. Since here 
 
91 
 
 the great constitutional purpose of keeping commerce 
 free would be plainly non-existent, in this application the 
 Congressional power to regulate commerce ought to have 
 no especial paramount effect when in conflict with the 
 powers reserved to the States. In such a case, or in the 
 case of any act which grips deep into the province of 
 State government for purposes not actually and honestly 
 connected with the maintenance of the free flow of com- 
 merce, I say that such act of Congress should be held 
 to be beyond the power of Congress because it is more 
 than a regulation of interstate commerce, and is in sub- 
 stance and essence an invasion of the sphere of govern- 
 ment reserved to the States by the Constitution of the- 
 United States. 
 
 In conclusion, I suggest to this Court the inquiry yvhat 
 John Marshall would have thought, if he could have 
 foreseen the day when the Executive Department of 
 the United States Government would appear in private- 
 litigation before the Supreme Court of Connecticut, 
 asking this Court to hold that, under the pretext of 
 regulating commerce between the States, Congress might- 
 from this time on drag within the pale of its exclusive- 
 jurisdiction the function of legislating as to the contracts 
 of employment between the greatest business corporation, 
 of the State and its employees hired within the State, 
 and as to the hability of such corporation to its employees- 
 for negligent acts of themselves or others performed 
 within this State, and even as to the distribution after 
 death of the property of a large body of citizens of this. 
 State, and as to the conduct of agents of its Courts. 
 
92 
 
 I sincerely hope that the highest Court of the State of 
 Oliver Ellsworth and Roger Sherman will conservatively 
 stand for such a delimitation of the spheres of State 
 Government and Federal Government as Oliver Ells- 
 worth, Roger Sherman and John Marshall believed in. 
 
93 
 
 WILLIAM H. HOXIE 
 
 V. 
 
 NEW YORK, NEW HAVEN 
 & HARTFORD R. R. CO. 
 
 New Haven County, 
 
 June Term, 
 
 1909. 
 
 Action by an inhabitant of Connecticut, brought to 
 the Superior Court for New London County, against the 
 New York, New Haven & Hartford Railroad Company, 
 described as a corporation organized under the laws of 
 Connecticut, for an injury received by him while acting 
 as a train hand on its railroad at Auburn in Massachusetts. 
 The complaint alleged an injury received while the plain- 
 tiff was coupling cars in a train running from Norwich, 
 Connecticut, to Worcester, Massachusetts, and due to 
 the negligence of a fellow servant in control of another 
 train of the defendant, running between Hartford, 
 Connecticut, and Worcester ; and claimed damages "under 
 and by force of the Act of Congress approved April 2 2d, 
 1908, relating to liability of common carriers by railroad 
 ■engaged in commerce between the States." A demurrer 
 to the complaint was sustained (R. Wheeler, J.) and 
 judgment rendered for the defendant. No Error. 
 
 Baldwin, C. J. The plaintiff bases his action solely 
 on the Act of Congress of April 22, 1908. His injury, 
 having been due to the negligence of a fellow-servant, 
 could throw no liability on the defendant, had it occurred 
 in this State, and were the question of Hability to be 
 determined by the common law of Connecticut. It did 
 
94 
 
 ■occur in Massachusetts, and he does not allege what 
 the law of Massachusetts in respect to that question is. 
 It is therefore to be presumed to be the same as that of 
 this State. Lockwood v. Crawford, i8 Conn., 370. 
 
 If the plaintiff has a right of action it must be based 
 ■on the law affecting the relations of the parties at the 
 time and place of the injury. As to the merits and 
 •rights involved in actions, the law of the place where 
 they originated is to govern. Wood v. Watkinson, 17 
 Conn., 500, 510. This is true of tort actions; at least 
 when a wrong having been done, actionable under the 
 law of the place of its commission, there is nothing in 
 the public policy obtaining at the forum to stand in the 
 way of granting a remedy. Wharton on Private Inter- 
 national Law, 3d Ed., II, §478, b. The law of Massa- 
 chusetts in respect to any claims on the defendant grow- 
 ing out of the plaintiff's injury being presumably the 
 same as that of Connecticut, there can be no recovery 
 unless by virtue of the Act of Congress which, if it affects 
 proceedings in State courts, governs in each State alike. 
 
 Congress has what may be described in general terms 
 .as plenary power (Const., Art. I, Sec. 8) "to regulate 
 Commerce with Foreign Nations, and among the several 
 States, and with the Indian Tribes." Elsewhere in the 
 Constitution certain limitations are specifically pre- 
 scribed, and others may exist by virtue of the necessary 
 implications from the dual system of political govern- 
 ment — imperium in imperio — which that instrument 
 created. 
 
 By its provisions the sovereignty of each of the States 
 is as carefully guarded as that of the United States. 
 
95 
 
 Each was to remain free to maintain its own executive, 
 legislative, and judicial magistracies. Nothing could 
 be done by Congress to impair this right, in any State, so 
 long as it preserved a republican form of government. 
 The power to maintain a judicial department is one, 
 incident to the inherent sovereignty of each State, "in 
 respect to which the State is as^ independent of the 
 general government as that government is independent 
 ■of the States." As to that power, "the two governments 
 are upon an equality." The Collector v. Day, ii Wall., 
 113, 126. 
 
 The judicial power of the United States is, by the first 
 section of their Constitution (Art. Ill), "vested in one 
 Supreme Court, and in such inferior Courts as the Con- 
 gress may from time to time ordain and establish," and 
 by the second section extends, among other things, "to 
 all Cases, in Law and Eiq^uity, arising under this Constitu- 
 tion, the Laws of the United States, and Treaties made, 
 or which shall be made under their Authority." "The 
 better opinion is that the second section was intended as 
 a constitutional definition of the judicial power which 
 the Constitution intended to confine to courts created by 
 Congress; in other words, that such power extends only 
 to the trial and determination of 'cases' in courts of 
 Record, and that Congress is still at liberty to authorize 
 the judicial officers of the several States to exercise such 
 power as is ordinarily given to officers of courts not of 
 record; such, for instance, as the power to take affi- 
 davits, to arrest and commit for trial offenders against the 
 laws of the United States, to naturalize aliens, and to 
 perform such other duties as may be regarded as inci- 
 
96 
 
 dental to the judicial power rather than a part of the 
 judicial power itself." It was therefore held in the case 
 from which this observation has been quoted that an 
 Act of Congress, investing justices of the peace appointed 
 under the laws of a State with authority to arrest and 
 temporarily imprison deserters from a merchant vessel, 
 was not objectionable on the ground that it gave them a 
 judicial power belonging to the United States. Robert- 
 son V. Baldwin, 165 U. S., 275, 279, 280. 
 
 More recently the Supreme Court of the United States 
 has stated that the first section of Article III grants " the 
 entire jtldicial power of the Nation;" that the second 
 section is neither "a limitation nor an enumeration," 
 but "a definite declaration, a provision that the judicial 
 power shall extend to — that is, shall include — the several 
 matters particularly mentioned, leaving unrestricted the 
 general grant of the entire judicial power;" and that "all 
 the judicial power which the Nation was capable of 
 exercising" was vested in the tribunals described in the 
 first section. Kansas v. Colorado, 206 U. S., 46, 82, 83. 
 This power certainly included any authority which might 
 be given them by Congress to take cognizance of judicial 
 proceedings under statutes of the United States. "It 
 is a sound principle that in every well organized govern- 
 ment the judicial power should be coextensive with the 
 legislative, so far at least as private rights are to be 
 enforced by judicial proceedings." Kendall v. United 
 States, 12' Pet., 524, 618. 
 
 We find, then, under our American system of govern- 
 ment, each State possessing legislative power over most 
 subjects, and having courts that may exercise^a commen- 
 
97 
 
 surate judicial power, and the United States possessing 
 legislative power over a few subjects, and having courts 
 that may exercise a commensurate judicial power. 
 
 The Act of Congress now in question creates a statutory 
 right of action. It is one not existing at common law, 
 nor in chancery. It is one which, if warranted by the 
 Constitution of the United States, may, under their 
 general laws regulating the jurisdiction of the Circuit 
 Courts of the United States (U. S. Stat, at Large, XXV, 
 433), whenever damages exceeding $2,000 are claimed, 
 be made the subject of judicial proceedings in the Courts 
 of the United States as a suit of a civil nature arising 
 under the laws of the United States, without reference 
 to the citizenship of the parties. 
 
 In view of these circumstances and conditions two 
 questions present themselves at the threshold of the 
 present case. The first is whether Congress intended by 
 this Act to authorize the institution of an action under 
 it in the courts of the States. The second is whether, if 
 such were its intention, it had power to make it incumbent 
 on the State courts to assume jurisdiction. 
 
 The main provision of the Act are these : 
 
 "Sec. I. That every common carrier by railroad 
 while engaging in commerce between any of the several 
 States and Territories, or between any of the States and 
 Territories, or between the District of Columbia or any 
 of the States or Territories and any foreign nation or 
 nations, shall be liable in damages to any person suffer- 
 ing injury while he is employed by such carrier^in such 
 cornmerce, or, in case of the death of such employee, to 
 7 
 
98 
 
 Hs or her personal representative for the benefit of the 
 surviving widow or husband and children of such em- 
 ployee; and, if none, then of such employee's parents; 
 and, if none, then of the next of kin dependent upon such 
 employee, for such injury or death resulting in whole or 
 in part from the negligence of any of the officers, agents, 
 or employees of such carrier, or by reason of ^ any defect 
 or insufficiency due to its negligence, in its cars, 'engines, 
 appliances, machinery, track, roadbed, works, boats, 
 wharves, or other equipment. 
 
 Sec. 3. That in all actions hereafter brought against 
 any such common carrier by railroad under or by virtue 
 of any of the provisions of this act to recover damages 
 for personal injuries to an employee, or where such in- 
 juries have resulted in his death, the fact that the em- 
 ployee may have been guilty of contributory negligence 
 shall not bar a recovery, but the damages shall be dimin- 
 ished by the jury in proportion to the amount of negligence 
 attributable to such employee: Provided, That no such 
 •employee who may be injured or killed shall be held to 
 have been guilty of contributory negligence in any case 
 where the violation by such common carrier of any statute 
 ■enacted for the safety of employees contributed to the 
 injury or death of such employee. 
 
 Sec. 4. That in any action brought against any com- 
 mon carrier under or by virtue of any of the provisions 
 of this Act to recover damages for injuries to or the death 
 •of any of its employees such employee shall not be held 
 to have assumed the risks of his employment in any case 
 
99 
 
 where the violation by such common carrier of any statute 
 enacted for the safety of employees contributed to the 
 injury or death of such employee. 
 
 Sec. 5. That any contract, rule, regulation, or device 
 whatsoever, the purpose or intent of which shall be to 
 enable any common carrier to exempt itself from any 
 liability created by this act, shall to that extent be void ; 
 Provided, That in any action brought against any such 
 common carrier under or by virtue of any of the provi- 
 sions of this act, such common carrier may set off therein 
 any sum it has contributed or paid to any insurance, 
 relief benefit, or indemnity that may have been paid to 
 the injured employee or the person entitled thereto on 
 account of the injury or death for which said action was 
 brought. 
 
 Sec. 6. That no action shall be maintained under this 
 Act unless commenced within two years from the day 
 the cause of action accrued. 
 
 Sec. 8. That nothing in this Act shall be held to 
 limit the duty or liability of common carriers or to impair 
 the rights of their employees under any other act or acts 
 of Congress, * * * *_" 
 
 Was it the intention of Congress to authorize the 
 institution of the statutory form of action, thus created, 
 in the courts of the States? 
 
 At common law a servant cannot recover from his 
 master for injuries received from the neghgence of a 
 fellow servant, acting in the same line of employment. 
 
lOO 
 
 This is a part of that general American common law, 
 resting upon considerations of right and justice that have 
 been generally accepted by the people of the United 
 States, in administering which in any State the Federal 
 courts have not deemed themselves bound by the judicial 
 decisions of that State as to what, according to its common 
 law, are the limits of that doctrine there. The Supreme 
 Court of the United States has treated it as a rule of 
 general jurisprudence, especially when invoked in cases 
 arising in the course of commerce between States, and 
 as justly supported by the principle that negligence of 
 a servant resulting in an injury to a fellow servant does 
 not of itself prove any omission of care on the part of the 
 master in his employment, and only such omission of care 
 can justify holding the master responsible. Baltimore & 
 Ohio R. R. Co. V. Baugh, 149 U. S., 368, 378, 386. 
 
 The common law had established the fellow-servant 
 doctrine tipon two 'main considerations; one that above 
 mentioned, viewing it as a rule of justice; and the other, 
 viewing it as a rule of policy, in that it tended to make 
 each servant more watchful of his fellows, and thus to 
 promote the safety of all, as well as the efficiency of their 
 common work. 
 
 Congress has now seen fit to give an action where the 
 common law denied it. It makes a demand legal, which 
 the common law deemed impolitic. It is not lightly to 
 be presumed that these provisions were intended to fotind 
 original proceedings in the courts of the States and to 
 lay down for them new rules not only of right and policy 
 but of procedure. Carpenter v. Snelling, 97 Mass., 452, 
 458. 
 
lOI 
 
 . Sections 4 and 6 of the Act of 1888 clearly indicate that 
 the action is one to be brought under the statute. 
 
 The methods of procedure which are prescribed can 
 all be easily pursued in the Federal courts. Some of 
 them it might be difficult or even impossible to follow in 
 the courts of a State. Others could only be observed 
 there at the cost of setting up in the same tribunal con- 
 flicting standards of right and policy and practice. 
 
 This may be illustrated by a reference to the existing 
 jurisprudence and legislation of this State. 
 
 They allow a recovery for an injury resulting in death, 
 whether instantaneous or otherwise, in an action surviv- 
 ing to or brought by the executor or administrator, of 
 not exceeding $5,000, provided suit be instituted within 
 one year ; the damages to be distributed, after deducting 
 the 'costs and expenses of suit, half to the husband or 
 widow, and half to the lineal descendants of the decedent, 
 per stirpes; but if there be no such descendants the 
 whole to go to the husband or widow, and if there be no 
 husband or widow, to the heirs, according to the law 
 regulating the distribution of intestate personal estate. 
 Gen. Stat., §399; Public Acts of 1903, p. 149, Chapter 
 193. If the Act of Congress of April 22, 1908, applies 
 to State Courts, it would, in an action under the Act, by 
 virtue of Sec. i, cut off grandchildren of the decedent 
 in favor of his parents ; and in the event of there being 
 no surviving husband, widow, children or parent, exclude 
 the next of kin who were not dependent on the dece- 
 dent. It would also remove any limitation of the dam- 
 
I02 
 
 ages recoverable in case of a fatal injury, and by the 
 terms of Sec. 6, double the time within which suit could 
 be brought. 
 
 By virtue of Sec. 3, contributory negligence is to be no 
 bar but, if proved, "the damages shall be diminished by 
 the jury," in a certain proportion. Under our practice, 
 suits of such a nature have been often tried, or heard in 
 damages, before the court, without a jury. In such case, 
 unless the statute could be interpreted to require the 
 court to allow such a diminution, the purpose of this 
 section would be frustrated. 
 
 Section 5 allows a set-off under certain circumstances. 
 The action given is one founded on a tortious act or 
 omission for which the defendant is made responsible. 
 Set-off is purely a matter of statute. It was unknown 
 to the common law. Our statutes allow it in certain causes 
 sounding in contract, but not in any sounding in tort. 
 Lovell V. Hammond, 66 Conn., 500, 508. If the Act of 
 Congress can support an action brought under its pro- 
 visions in a State court, it would force upon this State 
 an extension of the privilege of set-off which our-statutes 
 have not thought it wise to permit. 
 
 It would also, by virtue of Sec. 6, double the time 
 within which a railroad cornpany can be sued in our courts 
 by one of its servants, for personal injuries received while 
 in its employment. 
 
 Under Gen. Stat., §1130, no action to recover damages 
 for an injury to, or death of, any person, caused by 
 negligence, can be maintained against any railroad com- 
 pany, unless written notice, containing a general descrip- 
 
I03 
 
 tion of the injury and of the time, -place, and cause of 
 its occurrence, as nearly as the same can be ascertained, 
 shall have been given to the defendant within four 
 months after the neglect complained of, unless the action 
 itself is commenced within that period. That such a 
 notice has been given is an essential allegation in the 
 complaint. Peck v. Fair Haven & Westville R. R. Co.,, 
 77 Conn.,, i6i. 
 
 No similar provision is made in the Act of Congress 
 now in question and, if it applies to proceedings in State 
 courts, no such allegation in cases brought under it 
 would seem to be necessary. None was in fact made, in 
 the case at bar, though the action was not brought until 
 more than four months after the alleged date of the 
 plaintiff's injury. 
 
 The question now under consideration is not whether 
 Congress may not prescribe a new rule of right as to 
 transactions occurring in the course of commerce between 
 the States, to be recognized and to control the disposition 
 of causes in all courts, State and Federal.' Undoubtedly 
 it can. Schlemmer v. .Buffalo Railway, 205 U. S., i. It 
 would be a change in substantive law, and thus alter 
 so far forth the law of the land. 
 
 But the Superior Court was called upon to say whether 
 the plaintiff could, under the Act of Congress of 1908, 
 insist on its entertaining an original action, which could 
 only be brought, if at all, under that Act, and which could 
 only be sustained by disregarding many of the require- 
 ments of our own law with respect both to pleadings and 
 evidence. 
 
I04 
 
 Another reason for considering this legislation as con- 
 versant only with proceedings in the Federal courts is 
 afforded by the provision (Section 7) that the term 
 "common carrier," as used in the Act, "shall include the 
 receiver or receivers or other persons or corporations 
 charged with the duty of the management and operation 
 of the business of a common carrier." By this a direct 
 action is unconditionally given on the statute against a 
 receiver. 
 
 Receivers stand for the court which appoints them. 
 To sue them without leave of that court is contrary' to 
 the rules of chancery practice. By an Act of Congress 
 passed in 1887 (24 U. S. Stat, at Large, 552), every 
 receiver appointed by any court of the United States 
 may be sued without its previous leave. The two Acts 
 of 1908 and 1887, so far as they apply to Federal courts, 
 are in this respect in entire harmony. But if the Act of 
 1908 were to be construed as warranting an action in a 
 State court against a receiver appointed by a State 
 court, it would set up a new rule of practice for that 
 State, and attack the dignity of its judicial department. 
 
 We have then a statute plainly intended to give an 
 action in the courts of the United States and — assuming 
 that it is not unconstitutional — well adapted to that 
 purpose. It is a statute not expressly purporting to give 
 an action in a court of a State, *and which, in this State 
 at least, is not in harmony with our system of .^.dminis- 
 trative justice. If it gives such an action, it can only 
 be on the ground that as its terms are general, and do 
 not exclude State courts, a right to sue in them is implied. 
 
Undoubtedly the courts of every State and of the 
 TJnited States together constitute, in a certain sense, one 
 judicial system for the enforcement of legal rights; but 
 it is not to be presumed that Congress would (if it could) 
 require those of a State to enforce rights newly created by 
 the laws of the "United States, which can only be enforced 
 by following modes of procedure not permitted by the 
 State law, and opposed to the public policy which that 
 law declares. Clafiin v. Houseman, 93 U. S., 130, 136. 
 Nothing short of express provisions or necessary impli- 
 cations in the language of an Act of Congress could suffice 
 to force upon a State court the exercise of a jurisdiction 
 so incompatible with the legislation and practice which 
 ■constitute its ordinary and natural rules of action. 
 
 It is true that under' the present statutes of the United 
 States no action under the Act of 1908 would lie in a court 
 of the United States unless the damages claimed exceeded 
 $2,000. Congress may, however, well be deemed to have 
 had in mind the power of the plaintiff to claim what 
 damages he pleases, and the rule that the sum named 
 determines the jurisdiction. 
 
 But if Congress intended to give an action under the 
 Act of April 22, 1908, in the courts of the States, as well 
 as in those of the United States, it is our opinion that the 
 Superior Court was justified in sustaining the demurrer. 
 
 The right to engage in commerce between the States 
 is not a right created by or under the Constitution of 
 the United States. It existed long before that Constitu- 
 tion was adopted. It was expressly guaranteed to the 
 free inhabitants of each State by the Articles of Con- 
 
io6 
 
 federation (Art. IV) and impliedly guaranteed by Art, 
 IV, Sec. 2, of the Constitution of the United States as a 
 privilege inherent in American citizenship. Slaughter 
 House Cases, i6 Wall., 36, 75; Gibbons v. Ogden, 9 
 Wheat., I, 211; Crandall V. Nevada, 6 Wall., 35; Lottery 
 Case, 188 U. S., 321, 362; The Employers' Liability 
 Cases, 207 U. S., 463, 502. 
 
 The reserved powers of the States leave them charged 
 with the sole duty and power of preserving public order 
 and the security of persons and property within their 
 territorial limits, except so far as, by or under the Con- 
 stitution of the United States, it may be otherwise 
 provided. A like duty arjd power exist with reference to 
 the regulation of the private relations of employer and 
 employee, and in general to the duties of common carriers. 
 That a regulation so adopted by a State may incidentally 
 affect commerce between the States does not render it 
 invalid. Hennington v. Georgia, 163 U. S., 229, 317; 
 New York, New Haven & Hartford R. R. Co. v. New 
 York, 165 U. S., 628, 631; Chicago Railway v. Solan, 
 169 U. S., 133, 137; Missouri Railway v. Haber, 169 
 U. S., 613, 635. 
 
 The State of Connecticut has under her laws, written 
 and unwritten, so regulated the relations of employer, 
 and employee that no action can be maintained in her 
 courts by a servant against his master for personal 
 injuries sustained within her territorial limits through 
 the negligence of one of his fellow servants, nor for such 
 injuries sustained through the negligence of the master, 
 combined with that of the plaintiff himself, when the 
 
I07 
 
 latter's negligence essentially contributed to the result,, 
 whether it were or were not as great as the master's. 
 
 The servant of a common carrier falls within these 
 rules. This is not because of the nature of his master's 
 business. They apply to every servant and every master. 
 
 If it be assumed that Congress has power to prescribe 
 a different rule for accidents occurring in or outside 
 Connecticut in the course of running a railroad train 
 between States, and to create a new statutory action for 
 its enforcement cognizable by the courts of the United 
 States, it cannot, in our opinion, require such an action 
 to be entertained by the courts of this State. 
 
 It would open a door to serious miscarriages of justice 
 through confusing our juries, if one rule of procedure 
 were to be prescribed in one class of suits against an. 
 employer, and another, diametrically opposed to it, in 
 another class of them. The same jurors might be in- 
 structed in one case that negligence on the part of the 
 plaintiff constituted no defence, but might be considered 
 in mitigation of damages, and in the next that he could 
 not recover at all unless he proved affirmatively that he 
 met his injury when himself in the exercise of due care. 
 They might be instructed in one case that a set-off was 
 allowable, and in the next, under contractual conditions 
 precisely similar, that a set-off was not allowable. 
 
 It would also compel courts established by a sovereign 
 power, and maintained at its expense for the enforcement 
 of what it deertied justice, to enforce what it deemed 
 injustice. 
 
io8 
 
 If Congress may thus change the common law relations 
 of master and servant by giving a new form and cause of 
 action in the courts of the United States, it does not 
 follow that they can give a servant a right to such a 
 remedy in those of States where these relations remain 
 unaltered. 
 
 The Act of 1908, furthermore, if constitutional, enlarges 
 the judicial power of the courts of the United States by 
 giving in a certain class of causes a judicial remedy 
 where none previously existed. This remedy is by a 
 plenary action. If we understand correctly the position 
 of the Supreme Court of the United States, no part of 
 the judicial power of the United States, when it is to be 
 exercised in the form of an original plenary action, can 
 be vested in any court not created by the United States. 
 In Martin v. Hunter's Lessee, i Wheat., 304, 330, it was 
 stated that "Congress cannot vest any portion of the 
 judicial power of the United States except in courts 
 ordained and established by itself." Houston v. Moore, 
 5 Wheaton, i, 27, which reaffirmed this position, was 
 the subject of consideration in Claflin v. Houseman, 
 93 U. S., 130, 141, where it was held to have decided 
 "not that Congress could confer jurisdiction upon the 
 State courts, but that these courts might exercise juris- 
 diction on cases authorized by the laws of the State, and 
 not prohibited by the exclusive jurisdiction of the Federal 
 courts." Robertson v. Baldwin, 165 U. S., 275, 279, in 
 words previously quoted, pronounces it as the better 
 opinion that the Constitution was intended to confine to 
 courts created by Congress the trial and determination 
 of cases in courts of Record falling within the grant of 
 federal judicial power. 
 
log 
 
 This case does not present the question which might 
 arise if the State of Connecticut by appropriate legislation 
 had.- accepted for its courts the jurisdiction which the 
 plaintiff invokes. If he could then maintain his suit,, 
 it would be because the State had in effect granted him 
 the right to sue. Ex parte Knowles, 5 Calif., 300. 
 
 But if Congress may authorize a State court to enter- 
 tain a plenary action created by a law of the United 
 States, it would not follow that the jurisdiction must 
 be assumed. The judicial duty of the courts of a State 
 is fulfilled when they administer justice as its laws require. 
 Stephens, petitioner, 4 Gray, 559, 562. If they may,, 
 when not prohibited by the statutes of their State, accept 
 jurisdiction of statutory actions given by Act of Congress,, 
 they are also free to decline it; and the objection may 
 be taken by demurrer. Ely v. Peck, 7 Conn., 239. 
 
 The grounds of the demurrer filed in the case at bar, 
 while challenging the constitutionality of the Act of 1908, 
 do not specifically raise the point now under discussion. 
 It was, however, manifest on the face of the record and, 
 the judgment that the complaint was insufficient being- 
 right, it is immaterial that this particular objection was. 
 not distinctly made. Thresher v. Stonington Savings 
 Bank, 68 Conn., 201, 205; British American Insurance 
 Co. V. Wilson, 77 Conn., 559, 564. 
 
 Thus far we have refrained from discussing the constitu- 
 tionality of the Act, except as to the single objection that,. 
 if it can be considered as intended to give an action in 
 the courts of the States, it goes in that respect beyond 
 the powers of Congress. In our opinion it also transcends, 
 them otherwise. 
 
no 
 
 By Sec. i,,the rule of respondeat superior is extended 
 -so as to make the common carrier by railroad between 
 States responsible for an injury received by one ■ of its 
 servants in the course of his employment in inter-State 
 commerce, due in whole or part to the negligence of any 
 •of its officers, agents, or employees, whether they are 
 or are not, at the time, themselves employed in such 
 commerce. 
 
 An inter-State carrier is generally also an intra-State 
 ■carrier. It may have a considerable force of officers, 
 agents or employees, engaged in business that is wholly 
 local. Does the power to regulate commerce between the 
 States go so far as to warrant imposing on a carrier 
 responsibility to a servant engaged in that business for 
 the consequences of the negligence of another of its 
 servants, occurring when the latter was not engaged in 
 it, or indeed in any business for the common employer? 
 If a freight clerk, whose duties are confined to keeping 
 tally of goods consigned from one point to another in the 
 same State, in an office devoted to that purpose, should 
 carelessly discharge a 'rifle, a bullet from which should 
 hit a brakeman on an inter-State train, a mile away, 
 we are of opinion that it could not fairly be deemed 
 a regulation of inter-State Commerce to hold the common 
 ■employer responsible for Ihe injury. The Employers' 
 Liability Cases, 207 U. S., 463, 498. Nor would it be such 
 a regulation, to make an inter-State railroad company 
 liable to a train hand who, while going to work, was 
 accidentally struck by an automobile directed by one of 
 its vice-presidents or land agents while on a pleasure 
 •drive. 
 
Ill 
 
 It is to be observed in this connection, also, that the 
 Act is not concerned solely with cases of injuries to train 
 hands. It includes those to any person who is employed 
 by the carrier in inter-State commerce, and gives an action 
 to his "or her" personal representative. A waitress 
 employed by an inter-State railroad in a railroad restau- 
 rant, where local custom does not exist or is not served, 
 could recover on the statute for an injury received from 
 the negligence of a man hired by the carrier for some 
 purpose purely of a local character. 
 
 Except so far as the Act is a regulation of commerce 
 between the States, its enactment was beyond the power 
 of Congress. That it remotely affects such commerce is 
 not sufficient, if that result is only to be secured by 
 invading the settled limits of the sovereignty of the 
 States with respect to their own internal police. Williams 
 V. Fear, 179 U. S;, 270, 278; Keller v. United States, 213 
 U. S.. ; 29 Supreme Court Reporter, 470.' The 
 
 Act cannot be interpreted as referring only to negligence 
 of employees while engaged in inter-State commerce. 
 It substantially re-enacts in this particular the words of 
 the previous Employers' Liability Act of 1906 (32 U. S. 
 Stat, at Large, 232), and must be presumed to have been 
 drafted with knowledge of the judicial construction which 
 those words had received. The Employers' Liability 
 Cases, 207 U. S., 463, 500. 
 
 The provision of Sec. 5 that any contract between an 
 inter-State carrier and any of its employees in such 
 business, intended to enable it 'to exempt itself from -any 
 liability created by the Act " shall to that extent be void," 
 is, in our opinion, in violation of the Fifth Amendment 
 
112 
 
 to the Constitution of the United States, as tending to 
 deprive the parties to such a contract of their liberty 
 and property without due process of law. The contract 
 may be one made on a full considera:tion by an employe, 
 or one seeking to become such, who is fully capable of 
 understanding its meaning and effect. He may be the 
 General Manager of a great railroad system, the damages 
 resulting from the loss of whose life might justly be 
 estimated at a vast sum. His salary may have been 
 agreed on in view of this provision of exemption. To 
 avoid that, and yet let the other provisions of the con- 
 tract stand, would necessarily work rank injustice. It 
 would virtually deprive the carrier of its property, and — 
 under the construction of that phrase adopted by the 
 courts of the United States — do so without due process 
 of law. Adair v. United States, 208 U. S., 161, 172. 
 
 The statute cannot be regarded in this respect as one 
 made for the protection of an ignorant and improvident 
 class, such as the Acts regarding shipping articles. The 
 employees of a railroad company are, in general, men of 
 more than ordinary intelligence. The dangerous nature 
 of the business requires and secures this. It cannot be 
 regarded as one made for the protection of train-hands, 
 for it covers every kind of employees. It denies them, 
 one and all that liberty of contract which the Constitution 
 of the United States secures to every person within their 
 jurisdiction. 
 
 The Act, it is to be remembered, does not confine itself 
 to avoiding a contractual' provision for exemption from 
 liabiHty for the neghgence of the carrier's servants while 
 engaged in carrying on the work of transportation. It 
 
"3 
 
 avoids a provision for exemption from liability for the 
 negligence of its servants while not engaged in carrying 
 on the work of transportation, and even while not 
 engaged in the line of their service, at all. 
 
 The provisions of Section 3 allow and apparently 
 reqtiire the recovery of some damages, although the 
 plaintiff's negligence was gross and that of his fellow 
 employee slight. If, as aptly suggested by the defendant's 
 counsel, an engineer, hearing but negligently disregarding 
 an automatic warning bell, should derail his train at a 
 switch negligently left open by the man in charge, and 
 the latter be struck by an overturned car, each could 
 recover from the common employer for any personal 
 injury, although it came from a plain violation of known 
 rules, and the employer's loss from the consequent 
 destruction of life and property were enormous. 
 
 The doctrine of comparative negligence, as it has been 
 generally understood where it obtains, is that slight 
 negligence shall not defeat an action against one guilty 
 of gross negligence. In the form assumed by the Act of 
 1908, it sanctions a recovery where the plaintiff has been 
 guilty of gross negligence and the defendant of none at 
 all. To hold the carrier liable in such case because of 
 the imputed negligence of any officer, agent, or employee, 
 whether the latter be at the time engaged in inter-State 
 commerce or not, seems to us not an appropriate or 
 legitimate regulation of commerce between the States, 
 but rather an arbitrary and unlawful deprivation of 
 property, within the meaning of the Fifth Amendment 
 to the Constitution of the United States. 
 8 
 
114 
 
 It serves to confirm this conclusion that the liability 
 thrown upon the carrier by Sec. i is not confined to 
 damages resulting solely from the negligence of its 
 officers, agents, or employees. It is fixed and complete 
 if such negligence contributes in any degree to the injury, 
 although it be partly due to the act or omission of a mere 
 stranger. There can be no contribution between wrong- 
 doers. If, therefore, the carrier in such a case could be 
 held under the statute, his property would be taken to 
 pay for a wrong mainly, perhaps, done by one with whom 
 it stood in no contractual relations and who, except for 
 this particular act, had no connection with commerce 
 between the States. 
 
 The Act gives a remedy for injuries causing death, 
 without limitation of the damages recoverable, in favor 
 of the executor or administrator; the fund to be dis- 
 tributed in a manner which is inconsistent with the law 
 of every State with respect to the devolution of the 
 estate of a deceased person. In our opinion. Congress 
 cannot create such a right of action in favor of personal 
 representatives of an inhabitant of a State. They are 
 appointed, or their appointment is approved, by authority 
 of the State, exercised through some court to which they 
 are accountable. If the damages recoverable are to be 
 treated as representing estate left by the decedent, it 
 is for the State of his domicil to regulate their distribu- 
 tion. If they are to be treated as a fund created by this 
 Act, which does not represent anything that ever be- 
 longed to the decedent, it was, in our opinion, not within 
 the competency of Congress thus to bring into existence 
 a new duty of executors or administrators to collect 
 
IIS 
 
 and a new duty of masters to pay what the decedent 
 never owned. Such legislation falls solely within the 
 sphere of the States. 
 
 It does not appear that Congress would have enacted 
 this measure without the provisions on which we have 
 thus commented. These parts of the statute cannot be 
 severed from the rest, and their invalidity rendered it 
 wholly void, so far as it applies to the case before us. 
 The Employers' Liability Act Cases, 207 U. S., 463, 501. 
 
 A statute enacted in a jurisdiction where a written 
 constitution obtains, is prima facie presumed by its courts, 
 if its validity be questioned before them, to be in accord 
 with that constitution. Whether such a presumption 
 exists either in a State court or in those of the United 
 States, in favor of an Act of Congress which, if valid, 
 reduces the limits within which, the sovereignty of the 
 States has for more than a century been freely exercised, 
 and especially of this Act, which by its title does not 
 purport to be a regulation of inter-State or foreign 
 commerce, but simple to relate "to the liability of com- 
 mon carriers by railroads to their employees in certain 
 cases," we need not inquire. If the statute under review 
 has the support of such a presumption, that support 
 is overthrown by the considerations previously stated. 
 
 To sum up our conclusions, the judgment of the Supe- 
 rior Court was right on each of the following grounds : 
 
 I. Congress did not intend by the Act of April 22, 1908, 
 to authorize the institution of an action under it in the 
 Courts of the States. 
 
n6 
 
 2. It had no power to make it incumbent on the State 
 courts to assume jurisdiction of such an action. 
 
 3. The issues before the Superior Court involved the 
 consideration of these points, which justified, of them- 
 selves, the dismissal of the plaintiff's action ; but further, 
 
 4. The Act, so far as it coiicerns this cause, is wholly 
 void by reason of certain of its provisions which cannot 
 be separated from the rest. 
 
 There is no error. 
 
 In this opinion the other judges concurred. 
 
117 
 EDGAR C. MONDOU 
 
 V. 
 
 N. Y., N. H. & H. R. R. CO. 
 
 New Haven County, 
 
 June Term, 
 
 1909. 
 
 Action for personal injuries to the plaintiff while 
 employed as a fireman on a railroad train running between 
 States; brought to the Superior Court for New London 
 County, and heard on demurrer by Ralph Wheeler, J. 
 Demurrer sustained and judgment for defendant. No 
 error. 
 
 Baldwin, C. J. The complaint alleges that the plain- 
 tiff, while employed by the defendant as a fireman on a 
 railroad train running from Midway, Connecticut, to the 
 Harlem River, in New York, was injured while in the 
 exercise of due care, by the negligence Of the defendant 
 and its servants and agents in receiving a foreign car 
 which was defective and in a dangerous condition, with- 
 out inspecting it, and putting it into another train running 
 in the opposite direction from the Harlem River to 
 Midway, in consequence of which; as the trains met in 
 Guilford in this State on August 5, 1908, the top of the 
 car tilted over and struck the plaintiff. It concludes 
 thus: "The plaintiff claims $25,000 damages, under and 
 by force of the act of Congress entitled 'An Act relating 
 to the Liability of Common Carriers by Railroad to 
 their Employes in Certain Cases.' Approved April 2 2d, 
 1908." The suit was brought in October, 1908. A 
 demurrer was filed attacking both the complaint and the 
 claim for relief. 
 
ii8 
 
 Both parties have treated, the action as one brought 
 upon the Act of Congress of April 22, 1908, and we shall 
 therefore accept that view, as did the Superior Court. 
 
 Thus considered, the demurrer was properly sustained, 
 for reasons fully stated in the case of Hoxie v. N. Y., 
 N. H. & H. R. R. Co., ante. 
 
 We think it proper, however, to observe, in order to 
 avoid any misconstruction of our position in subsequent 
 cases, that the complaint charges the defendant directly 
 with negligence in respect to the duty of inspecting the 
 foreign car. It owed an absolute duty to the plaintiff to 
 use reasonable care in inspecting the condition of all the 
 rolling stock used upon its railroad. The demurrer 
 admitted that it failed to exercise such care and that 
 the plaintiff exercised due care, and as the suit was 
 brought within four months from the date of the injury 
 to the plaintiff, he would have made out a prima facie 
 case, had he not chosen to claim his remedy imder the 
 Act of Congress, instead of under the laws of Connecticut. 
 
 There is no error. 
 
 In this opinion the other judges concurred. 
 

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