The Courts and Social Questions on one side or the other and to meet the reasons urged on the contrary part. It is doubtful if the decision against the validity of the statute can be sustained on the point taken by the New York Court of Appeals, that it was the estab lished law when the Constitution was adopted that no man can be held liable without fault. The constitutional guar antees of liberty and property do not require that the rules of law, even though of a fundamental character, shall remain unchanged. The common law itself is subject to be abrogated by legislation, and even the doctrine of vested rights which has grown up out of the constitu tional guarantees of property, can hardly be extended so as to insure the unchangeability of established rules of law. It is only the rights of property that have been acquired under existing laws that are protected against subse quent legislation. There is a taking of property in making a man pay for in juries which were no fault of his, but it is quite possible that this liability may, without gross injustice, be made a condition of employing men to work for you under conditions of a certain character. It is the question of injus tice that is at the bottom of the case, for it is the violation of accepted opin ions as to what are the individual rights which the state is bound to respect, that is the duty of the courts to maintain. To the modern mind there is a sense of injustice in liability without fault and the modern law of torts is, as Professor Wigmore says, "A rationalized adjust ment of Legal rules to considerations of fairness and social policy,"* but this was not so at the beginning. "The primitive Germanic law," in which our law of torts had its origin, "knew noth-
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ing," as Professor Wigmore says, "of those refinements; it made no inquiry into negligence, and it based no rule on the presence or absence of a design or intent." We cannot pursue the important questions involved in these statutes called the "Workmen's Compensation Acts." The pertinency of them in the present discussion is the fact that, like the statutes limiting the hours of labor, they involve the courts in burning social and industrial questions with property rights on one side and the interest of large masses of people on the other, and that they are examples of other popular movements which involve the same antagonism. One of the remedies suggested for judicial conservatism on such questions is the recall of the judges by popular vote. Such a remedy would impair the self-respect of the judges and the respect of the people for the courts. The very attempt to recall any public officer in flicts upon him a personal disgrace before he has had an opportunity of being heard, and when applied to judges whose position compels them to keep silent, the proceeding is intolerable. It is admitted by its advocates that the plan is only a last resort and only to be insisted upon because the judges by their training and traditions cannot accept the new conceptions of liberty and property and the power of the majority to make the laws. The true remedy is rather for courts and lawyers to keep themselves in touch with the facts of life as they are; to know the conditions under which men and women work and to study with sympathy as well as with knowledge the facts which determine what sort of legislation is needed for the promotion •Wigmore on Tortious Responsibility, 7 Harvard of the public health, safety, and welfare, Law Rev. pp. 316-342, 383. Select Essays in and so to understand what is in truth Anglo-American Legal History, v. 3, p. 475.
