Having for years given much thought to this subject, I became some time

since impressed with the view that probably in yellow fever, as in the

malarial fevers, there is an "intermediate host." I therefore suggested

to Dr. Reed, president of the board appointed upon my recommendation for

the study of this disease in the island of Cuba, that he should give

special attention to the possibility of transmission by some insect,

although the experiments of Finlay seemed to show that this insect was

not a mosquito of the genus _Culex_, such as he had used in his

inoculation experiments. I also urged that efforts should be made to

ascertain definitely whether the disease can be communicated from man to

man by blood inoculations. Evidently if this is the case the blood must

contain the living infectious agent upon which the propagation of the

disease depends, notwithstanding the fact that all attempts to

demonstrate the presence of such a germ in the blood, by means of

microscope and culture methods, have proved unavailing. I had previously

demonstrated by repeated experiments that inoculations of yellow fever

blood into lower animals--dogs, rabbits, guinea pigs--give a negative

result, but this negative result might well be because these animals

were not susceptible to the disease and could not be accepted as showing

that the germ of yellow fever was not present in the blood. A single

inoculation experiment on man had been made in my presence in the city

of Vera Cruz, in 1887, by Dr. Daniel Ruiz, who was in charge of the

civil hospital in that city. But this experiment was inconclusive for

the reason that the patient from whom the blood was obtained was in the

eighth day of the disease, and it was quite possible that the specific

germ might have been present at an earlier period and that after a

certain number of days the natural resources of the body are sufficient

to effect its destruction, or in some way to cause its disappearance

from the circulation.

This was the status of the question of yellow fever etiology when Dr.

Reed and his associates commenced their investigations in Cuba during

the summer of 1900. In a "Preliminary Note," read at the meeting of the

American Public Health Association, October 22, 1900, the board gave a

report of three cases of yellow fever which they believed to be direct

results of mosquito inoculations. Two of these were members of the

board, viz., Dr. Jesse W. Lazear and Dr. James Carroll, who voluntarily

submitted themselves to the experiment. Dr. Carroll suffered a severe

attack of the disease and recovered, but Dr. Lazear fell a victim to his

enthusiasm and died in the cause of science and humanity. His death

occurred on September 25, after an illness of six days' duration. About

the same time nine other individuals who volunteered for the experiment

were bitten by infected mosquitoes--i.e. by mosquitoes which had

previously been allowed to fill themselves with blood from yellow fever

cases--and in these cases the result was negative. In considering the

experimental evidence thus far obtained, the attention of the members of

the board was attracted by the fact that in the nine inoculations with a

negative result "the time elapsing between the biting of the mosquito

and the inoculation of the healthy subject varied in seven cases from

two to eight days, and in the remaining two from ten to thirteen days,

whereas in two of the three successful cases the mosquito had been kept

for twelve days or longer." In the third case, that of Dr. Lazear, the

facts are stated in the report of the board as follows:

Case 3. Dr. Jesse W. Lazear, Acting Assistant Surgeon U.S. Army, a

member of this board, was bitten on August 16, 1900 (Case 3, Table III)

by a mosquito (_Culex fasciatus_), which ten days previously had been

contaminated by biting a very mild case of yellow fever (fifth day). No

appreciable disturbance of health followed this inoculation.

On September 13, 1900 (forenoon), Dr. Lazear, while on a visit to Las

Animas Hospital, and while collecting blood from yellow fever patients

for study, was bitten by a _Culex_ mosquito (variety undetermined). As

Dr. Lazear had been previously bitten by a contaminated insect without

after effects, he deliberately allowed this particular mosquito, which

had settled on the back of his hand, to remain until it had satisfied

its hunger.

On the evening of September 18, five days after the bite, Dr. Lazear

complained of feeling "out of sorts," and had a chill at 8 P.M.

On September 19, twelve o'clock noon, his temperature was 102.4°, pulse

112; his eyes were injected and his face suffused; at 3 P.M. temperature

was 103.4°, pulse 104; 6 P.M., temperature 103.8° and pulse 106; albumin

appeared in the urine. Jaundice appeared on the third day. The

subsequent history of this case was one of progressive and fatal yellow

fever, the death of our much-lamented colleague having occurred on the

evening of September 25, 1900.

Evidently in this case the evidence is not satisfactory as to the fatal

attack being the result of the bite by a mosquito "while on a visit to

Las Animas Hospital," although Dr. Lazear himself was thoroughly

convinced that this was the direct cause of his attack.

The inference by Dr. Reed and his associates, from the experiments thus

far made, was that yellow fever may be; transmitted by mosquitoes of the

genus _Culex_, but that in order to convey the infection to a nonimmune

individual the insect must be kept for twelve days or longer after it

has filled itself with blood from a yellow fever patient in the earlier

stages of the disease. In other words, that a certain period of

incubation is required in the body of the insect before the germ reaches

its salivary glands, and consequently before it is able to inoculate any

individual with the germs of yellow fever. This inference, based upon

experimental data, received support from other observations, which have

been repeatedly made, with reference to the introduction and spread of

yellow fever in localities favorable to its propagation. When a case is

imported to one of our southern seaport cities, from Havana, Vera Cruz,

or some other endemic focus of the disease, an interval of two weeks or

more occurs before secondary cases are developed as a result of such

importation. In the light of our present knowledge this is readily

understood. A certain number of mosquitoes having filled themselves with

blood from this first case after an interval of twelve days or more bite

nonimmune individuals living in the vicinity, and these individuals

after a brief period of incubation fall sick with the disease; being

bitten by other mosquitoes they serve to transmit the disease through

the "intermediate host" to still others. Thus the epidemic extends, at

first slowly from house to house, then more rapidly, as by geometrical

progression.

It will be seen that the essential difference between the successful

experiments of the board of which Dr. Reed is president and the

unsuccessful experiments of Finlay consists of the length of time during

which the mosquitoes were kept after filling themselves with blood from

a yellow fever patient. In Finlay's experiments the interval was usually

short,--from two to five or six days,--and it will be noted that in the

experiments of Reed and his associates the result was invariably

negative when the insect had been kept less than eight days (7 cases).

Having obtained what they considered satisfactory evidence that yellow

fever is transmitted by mosquitoes, Dr. Reed and his associates

proceeded to extend their experiments for the purpose of establishing

the fact in such a positive manner that the medical profession and the

scientific world generally might be convinced of the reliability of the

experimental evidence upon which their conclusions were based. These

conclusions, which have been fully justified by their subsequent

experiments, were stated in their "Preliminary Note" as follows:

1. Bacillus icteroides (Sanarelli) stands in no causative relation

to yellow fever, but, when present, should be considered as a

secondary invader in this disease.

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

yellow fever.

In "An Additional Note" read at the Pan-American Medical Congress held

in Havana, Cuba, February 4,-7, 1901, a report is made of the further

experiments made up to that date. In order that the absolute scientific

value of these experiments may be fully appreciated I shall quote quite

freely from this report with reference to the methods adopted for the

purpose of excluding all sources of infection other than the mosquito

inoculation:

In order to exercise perfect control over the movements of those

individuals who were to be subjected to experimentation, and to avoid

any other possible source of infection, a location was selected in an

open and uncultivated field, about one mile from the town of Quemados,

Cuba. Here an experimental sanitary station was established under the

complete control of the senior member of this board. This station was

named Camp Lazear, in honor of our late colleague, Dr. Jesse W. Lazear,

Acting Assistant Surgeon U.S.A., who died of yellow fever, while

courageously investigating the causation of this disease. The site

selected was well drained, freely exposed to sunlight and winds, and

from every point of view satisfactory for the purposes intended.

The personnel of this camp consisted of two medical officers, Dr. Roger

P. Ames, Acting Assistant Surgeon U.S.A., an immune, in immediate

charge; Dr. R. P. Cooke, Acting Assistant Surgeon U.S.A., nonimmune; one

acting hospital steward, an immune; nine privates of the hospital corps,

one of whom was immune, and one immune ambulance driver.

For the quartering of this detachment, and of such nonimmune individuals

as should be received for experimentation, hospital tents, properly

floored, were provided. These were placed at a distance of about twenty

feet from each other, and numbered 1 to 7 respectively.

Camp Lazear was established November 20, 1900, and from this date was

strictly quarantined, no one being permitted to leave or enter camp

except the three immune members of the detachment and the members of the

board. Supplies were drawn chiefly from Columbia Barracks, and for this

purpose a conveyance under the control of an immune acting hospital

steward, and having an immune driver, was used.

A few Spanish immigrants recently arrived at the port of Havana were

received at Camp Lazear, from time to time, while these observations

were being carried out. A nonimmune person, having once left the camp,

was not permitted to return to it under any circumstances whatsoever.

The temperature and pulse of all nonimmune residents were carefully

recorded three times a day. Under these circumstances any infected

individual entering the camp could be promptly detected and removed. As

a matter of fact, only two persons, not the subject of experimentation,

developed any rise of temperature; one, a Spanish immigrant, with

probable commencing pulmonary tuberculosis, who was discharged at the

end of three days: and the other, a Spanish immigrant, who developed a

temperature of 102.6° F. on the afternoon of his fourth day in camp. He

was at once removed with his entire bedding and baggage and placed in

the receiving ward at Columbia Barracks. His fever, which was marked by

daily intermissions for three days, subsided upon the administration of

cathartics and enemata. His attack was considered to be due to

intestinal irritation. He was not permitted, however, to return to the

camp.

No nonimmune resident was subjected to inoculation who had not passed in

this camp the full period of incubation of yellow fever, with one

exception, to be hereinafter mentioned.

For the purpose of experimentation subjects were selected as follows:

From Tent No. 2, 2 nonimmunes, and from Tent No. 5, 3 nonimmunes. Later,

1 nonimmune in Tent No. 6 was also designated for inoculation.

It should be borne in mind that at the time when these inoculations were

begun, there were only 12 nonimmune residents at Camp Lazear, and that 5

of those were selected for experiment, viz., 2 in Tent No. 2, and 3 in

Tent No. 5. Of these we succeeded in infecting 4, viz., 1 in Tent No. 2.

and 3 in Tent No. 5, each of whom developed an attack of yellow fever

within the period of incubation of this disease. The one negative

result, therefore, was in Case 2--Moran--inoculated with a mosquito on

the fifteenth day after the insect had bitten a case of yellow-fever on

the third day. Since this mosquito failed to infect Case 4, three days

after it had bitten Moran, it follows that the result could not have

been otherwise than negative in the latter case. We now know, as the

result of our observations, that in the case of an insect kept at room

temperature during the cool weather of November, fifteen or even

eighteen days would, in all probability, be too short a time to render

it capable of producing the disease.

As bearing upon the source of infection, we invite attention to the

period of time during which the subjects had been kept under rigid

quarantine, prior to successful inoculation, which was as follows: Case

1, fifteen days; Case 3, nine days; Case 4, nineteen days; Case 5,

twenty-one days. We further desire to emphasize the fact that this

epidemic of yellow fever, which affected 33.33 per cent of the nonimmune

residents of Camp Lazear, did not concern the seven nonimmunes occupying

Tents Nos, 1, 4, 6 and 7, _but was strictly limited to those individuals

who had been bitten by contaminated mosquitoes._

Nothing could point more forcibly to the source of this infection than

the order of the occurrence of events at this camp. The precision with

which the infection of the individual followed the bite of the mosquito

left nothing to be desired in order to fulfill the requirements of a

scientific experiment.

In summing up their results at the conclusion of this report the

following statement is made:

Out of a total or eighteen nonimmunes whom we have inoculated with

contaminated mosquitoes, since we began this line of investigation,

eight, or 44.4 per cent, have contracted yellow fever. If we exclude

those individuals bitten by mosquitoes that had been kept less than

twelve days after contamination, and which were therefore probably

incapable of conveying the disease, we have to record eight positive and

two negative results--80 per cent.

In a still later report (May, 1901) Dr. Reed says, "We have thus far

succeeded in conveying yellow fever to twelve individuals by means of

the bites of contaminated mosquitoes."

The nonimmune individuals experimented upon were all fully informed as

to the nature of the experiment and its probable results and all gave

their full consent. Fortunately no one of these brave volunteers in the

cause of science and humanity suffered a fatal attack of the disease,

although several were very ill and gave great anxiety to the members of

the board, who fully appreciated the grave responsibility which rested

upon them. That these experiments were justifiable under the

circumstances mentioned is, I believe, beyond question. In no other way

could the fact established have been demonstrated, and the knowledge

gained is of inestimable value as a guide to reliable measures of

prevention. Already it is being applied in Cuba, and without doubt

innumerable lives will be saved as a result of these experiments showing

the precise method by which yellow fever is contracted by those exposed

in an "infected locality." Some of these volunteers were enlisted men of

the United States Army and some were Spanish immigrants who had recently

arrived in Cuba. When taken sick they received the best possible care,

and after their recovery they had the advantage of being "immunes" who

had nothing further to fear from the disease which has caused the death

of thousands and tens of thousands of Spanish soldiers and immigrants

who have come to Cuba under the orders of their government or to seek

their fortunes.

The experiments already referred to show in the most conclusive manner

that the blood of yellow fever patients contains the infectious agent,

or germ, to which the disease is due, and this has been further

demonstrated by direct inoculations from man to man. This experiment was

made by Dr. Reed at "Camp Lazear" upon four individuals, who freely

consented to it; and in three of the four a typical attack of yellow

fever resulted from the blood injection. The blood was taken from a vein

at the bend of the elbow on the first or second day of sickness and was

injected subcutaneously into the four nonimmune individuals, the amount

being in one positive case 2 cc, in one 1.5 cc, and in one O.5 cc. In

the case attended with a negative result, a Spanish immigrant, a

mosquito inoculation also proved to be without effect, and Dr. Reed

supposes that this individual "probably possesses a natural immunity to

yellow fever." Dr. Reed says with reference to these experiments:

It is important to note that in the three cases in which the injection

of the blood brought about an attack of yellow fever, careful culture

from the same blood, taken immediately after injection, failed to show

the presence of Sanarelli's bacillus.

Having demonstrated the fact that yellow fever is propagated by

mosquitoes, Dr. Reed and his associates have endeavored to ascertain

whether it may also be propagated, as has been commonly supposed, by

clothing, bedding, and other articles which have been in use by those

sick with this disease. With reference to the experiments made for the

solution of this question I cannot do better than to quote _in extensa_

from Dr. Reed's paper read at the Pan-American Medical Congress in

Havana.

[This extract from Dr. Reed's paper describes in careful scientific

detail the experiments which finally established the fact that the

contagion came through mosquitoes, and in no other way. Into a small

house, thoroughly air-proof, were brought bedclothes, clothing, and

other articles which had been contaminated by yellow fever patients.

Then for twenty days men who were nonimmune to the fever slept in this

building, with no evil effects. This experiment was repeated several

times. Then in another building similar, except that it was ventilated

by mosquito-proof windows, and had been thoroughly disinfected, another

volunteer was bitten by mosquitoes which had first bitten patients

suffering with yellow fever; and he developed the disease. The last

paragraph of the extract is as follows:]

"Thus at Camp Lazear, of seven nonimmunes whom we attempted to

infect by means of the bites of contaminated mosquitoes, we have

succeeded in conveying the disease to six, or 85.71 per cent. On the

other hand, of seven nonimmunes whom we tried to infect by means of

fomites [cloth and other material generally capable of carrying

germs] under particularly favorable circumstances, we did not

succeed in a single instance."

It is evident that in view of our present knowledge relating to the mode

of transmission of yellow fever, the preventive measures which have

heretofore been considered most important, that is, isolation of the

sick, disinfection of clothing and bedding, and municipal sanitation,

are either of no avail or of comparatively little value. It is true that

yellow fever epidemics have resulted, as a rule, from the introduction

to a previously healthy locality of one or more persons suffering from

the disease. But we now know that its extension did not depend upon the

direct contact of the sick with the nonimmune individuals and that

isolation of the sick from such contact is unnecessary and without

avail. On the other hand, complete isolation from the agent which is

responsible for the propagation of the disease is all-important. In the

absence of a yellow fever patient from which to draw blood the mosquito

is harmless, and in the absence of the mosquito the yellow fever patient

is harmless--as the experimental evidence now stands. Yellow fever

epidemics are terminated by cold weather because the mosquitoes die or

become torpid. The sanitary condition of our southern seaport cities is

no better in winter than in summer, and if the infection attached to

clothing and bedding it is difficult to understand why the first frosts

of autumn should arrest the progress of an epidemic. But all this is

explained now that the mode of transmission has been demonstrated.

Insanitary local conditions may, however, have a certain influence in

the propagation of the disease, for it has been ascertained that the

species of mosquito which serves as an intermediate host for the yellow

fever germ may breed in cesspools and sewers, as well as in stagnant

pools of water. If, therefore, the streets of a city are unpaved and

ungraded and there are open spaces where water may accumulate in pools,

as well as open cesspools to serve as breeding places for _Culex

fasciatus_, the city will present conditions more favorable for the

propagation of yellow fever than it would if well paved and drained and

sewered.

The question whether yellow fever may be transmitted by any other

species of mosquito than _Culex fasciatus_ has not been determined.

Facts relating to the propagation of the disease indicate that the

mosquito which serves as an intermediate host for the yellow fever germ

has a somewhat restricted geographical range and is to be found

especially upon the seacoast and the margins of rivers in the so-called

"yellow fever zone." While occasional epidemics have occurred upon the

southwest coast of the Iberian Peninsula, the disease, as an epidemic,

is unknown elsewhere in Europe, and there is no evidence that it has

ever invaded the great and populous continent of Asia. In Africa it is

limited to the west coast. In North America, although it has

occasionally prevailed as an epidemic in every one of our seaport cities

as far north as Boston, and in the Mississippi Valley as far north as

St. Louis, it has never established itself as an epidemic disease within

the limits of the United States. Vera Cruz, and probably other points on

the Gulf coast of Mexico, are, however, at the present time, endemic

foci of the disease. In South America it has prevailed as an epidemic at

all of the seaports on the Gulf and Atlantic coasts, as far south as

Montevideo and Buenos Aires, and on the Pacific along the coast of Peru.

The region in which the disease has had the greatest and most frequent

prevalence is bounded by the shores of the Gulf of Mexico, and includes

the West India islands. Within the past few years yellow fever has been

carried to the west coast of North America, and has prevailed as an

epidemic as far north as the Mexican port of Guaymas, on the Gulf of

California.

It must be supposed that _Culex fasciatus_ is only found where yellow

fever prevails. The propagation of the disease depends upon the

introduction of an infected individual to a locality where this mosquito

is found, at a season of the year when it is active. Owing to the short

period of incubation (five days or less), the brief duration of the

disease and especially of the period during which the infectious agent

(germ) is found in the blood, it is evident that ships sailing from

infected ports, upon which cases of yellow fever develop, are not likely

to introduce the disease to distant seaports. The continuance of an

epidemic on shipboard, as on the land, must depend upon the presence of

infected mosquitoes and of nonimmune individuals. Under these conditions

we can readily understand why the disease should not be carried from the

West Indies or from South America to the Mediterranean, to the east

coast of Africa, or to Asiatic seaport cities. On the other hand, if the

disease could be transmitted by infected clothing, bedding, etc., there

seems no good reason why it should not have been carried to these

distant localities long ago.

The restriction as regards altitude, however, probably depends upon the

fact that the mosquito which serves as an intermediate host is a coast

species, which does not live in elevated regions. It is a

well-established fact that yellow fever has never prevailed in the City

of Mexico, although the city has constant and unrestricted intercourse

with the infected seaport, Vera Cruz. Persons who have been exposed in

Vera Cruz during the epidemic season frequently fall sick after their

arrival in the City of Mexico, but they do not communicate the disease

to those in attendance upon them or to others in the vicinity. Evidently

some factor essential for the propagation of the disease is absent,

although we have the sick man, his clothing and bedding, and the

insanitary local conditions which have been supposed to constitute an

essential factor. I am not aware that any observations have been made

with reference to the presence or absence of _Culex fasciatus_ in high

altitudes, but the inference that it is not to be found in such

localities as the City of Mexico seems justified by the established

facts already referred to.

As pointed out by Hirsch, "the disease stops short at many points in the

West Indies where the climate is still in the highest degree tropical."

In the Antilles it has rarely appeared at a height of more than seven

hundred feet. In the United States the most elevated locality in which

the disease has prevailed as an epidemic is Chattanooga, Tennessee,

which is seven hundred and forty-five feet above sea level.

It will be remembered that the malarial fevers are contracted as a

result of inoculation by mosquitoes of the genus _Anopheles_, and that

the malarial parasite has been demonstrated not only in the blood of

those suffering from malarial infection, but also in the stomach and

salivary glands of the mosquito. If the yellow fever parasite resembled

that of the malarial fevers, it would no doubt have been discovered long

ago. But, as a matter of fact, this parasite, which we now know is

present in the blood of those sick with the disease, has thus far eluded

all researches. Possibly it is ultramicroscopic. However this may be, it

is not the only infectious disease germ which remains to be discovered.

There is no doubt a living germ in vaccine lymph and in the virus from

smallpox pustules, but it has not been demonstrated by the microscope.

The same is true of foot and mouth disease and of infectious

pleuropneumonia of cattle, although we know that a living element of

some kind is present in the infectious material by which these diseases

are propagated. In Texas fever, of cattle, which is transmitted by

infected ticks, the parasite is very minute, but by proper staining

methods and a good microscope it may be detected in the interior of the

red blood corpuscles. Drs. Reed and Carroll are at present engaged in a

search for the yellow fever germ in the blood and in the bodies of

infected mosquitoes. What success may attend their efforts remains to be

seen, but at all events the fundamental facts have been demonstrated

that this germ is present in the blood and that the disease is

transmitted by a certain species of mosquito--_Culex fasciatus_.

[At the end of the article General Sternberg reproduces the general

orders issued to the army in Cuba with directions for the precautions to

be taken against the disease.]

THE WORKMAN'S COMPENSATION ACT[75]

This is a good example of the high quality of argumentative writing

which is being turned out by daily and weekly journals in great

quantities throughout the year. This article, being from a weekly

journal, is longer and more searching than the editorial in a daily

paper, and to some extent partakes of the nature of an essay. It is

notable for the thoroughness of the analysis of the question, for the

careful review of the history of the case, and for the precise statement

of the points at issue. There is little space for the presentation of

evidence, though the specific statement of facts and the quotations from

authorities, so far as they go, serve as evidence.

We purpose in this article to give to our readers an interpretation of

the recent decision of the New York Court of Appeals declaring that the

Workman's Compensation Act is unconstitutional. We regard this decision

as of very great importance, because, if the Court has correctly

interpreted the Constitution of the United States, that document

prevents America from adopting an industrial reform which has been

adopted as just and necessary by practically the entire civilized world.

We do not believe that the interpretation of the Court is correct. It

is, in our opinion, in conflict alike with the progress of civilization,

the spirit of democracy, the principles of social justice, and the

analogies and tendencies of law. And we believe that this unconscious

attempt to fasten upon the workingman an unjust and intolerable burden

from which all other civilized nations, with one exception, have

relieved him, will ultimately prove as futile as was the conscious and

deliberate attempt of the United States Supreme Court, under the lead of

Chief Justice Taney, to halt the movement for the emancipation of the

slaves.

In the earlier stages of industrial development, when industry was

unorganized, machinery hardly existed, and labor was an individual

handicraft, the courts naturally assumed that accidents occurring to a

workman were probably due to his own negligence.

If he were mowing in a field and cut himself with his scythe, if he

were digging a ditch and sprained his ankle, if he were cutting down a

tree and it fell upon him and broke his leg, he could recover from his

employer only on proof that his employer was at fault. Nor could he

recover if the accident were due to the carelessness of a fellow

workman. There was always a natural presumption that he could better

guard against such carelessness than could the probably absent employer.

If he were turning a grindstone and his awkward fellow workman so held

the scythe as to cut him, if he were in the forest and his fellow

workman gave no notice of the falling tree, it was natural to presume

that the carelessness was shared between the two, and the law would

neither attribute blame to the employer nor levy the damage upon him

when he was not blameworthy.

But the organization of labor and the creation of elaborate machinery

has destroyed this presumption of the common sense, and therefore in all

civilized countries has destroyed this presumption of law. When a

railway train runs off the track because of a misplaced switch or a

defective rail, there is no presumption that the engineer was careless

or could have guarded against the carelessness of the switch tender or

of the manufacturer of the rail. When a fire breaks out in a room where

scores of shirt-waist makers are confined at their work and a hundred

and forty of them are burned to death, there is no presumption that the

impossibility of their escape through narrow passageways and a locked

door was due to their carelessness, or that they were to blame because

the tables at which they were working were wood, not metal, or that they

could have prevented the careless fellow workman from throwing his

cigarette down in the inflammable material which surrounded them. In

fact, only a very limited number of modern accidents are due to the

carelessness of the injured party; probably a somewhat larger number are

due to the carelessness of some other employee; while a very

considerable proportion are incidents of the trade and due to no

definite culpability which it is possible to trace home either to the

employer or the employed.

The Christian nations of the world have, with singular unanimity,

recognized this change, and have changed their laws to meet the new

conditions. The change which they have made was indicated to them by

their maritime laws, which in this respect have been alike in all

civilized nations and from a very early period. An accident occurring to

a sailor on shipboard has always been regarded as an accident to the

ship; and the ship has always been required to bear the burden of his

care and keep and cure. This right to be cared for does not rest on any

assumption that the master of the ship has been negligent, nor is the

seaman deprived of his right to care and keep and cure by proof that the

accident was due in part, or even altogether, to his negligence. He is

not debarred from recovery by proof of his carelessness; he is not given

larger damages upon proof of the negligence of the master. His right to

be cared for rests, says Mr. Justice Story, upon the fact that "seamen

are in some sort co-adventurers upon the voyage." Modern jurisprudence

throughout Christendom recognizes that under modern industrial

conditions the workman in the railway, the mine, and the factory is a

co-adventurer in the enterprise, and that the hazards incident to his

employment should be borne, not by the individual, but by the industry.

This principle is now recognized and incorporated in their legal,

systems by every country in Europe (including Russia but not Turkey)

with the single exception of Switzerland.[76]

The justice and importance of this reform have been recognized by such

statesmen as the President of the United States and his predecessor in

office, by such lawyers as Elihu Root, by workmen who desire some better

insurance against accident than is furnished them by a right to sue

their employers, by employers who desire to be protected from vexatious

lawsuits and the peril of verdicts for great sums, and by about half a

dozen states, including Kansas, New Jersey, Massachusetts, and New York,

all of which have passed Workmen's Compensation Acts. Such an act,

shifting the responsibility for the risks which are incident to the

trade in organized industry from the individual to the organization, the

New York Court of Appeals declares no state in the Union has authority

to enact, because the Constitution of the United States forbids its

enactment. The Court recognizes the need for a change in the Law. "We

desire," says the Court, "to present no purely technical or

hypercritical obstacles to any plan for the beneficent reformation of a

branch of our jurisprudence in which, it may be conceded, reform is a

consummation devoutly to be wished." It presents forcibly,

appreciatively, and apparently with entire approbation, the arguments

which have brought about this reform in other lands: "There can be no

doubt as to the theory of this law. It is based upon the proposition

that the inherent risks of an employment should, in justice, be placed

upon the shoulders of the employer, who can protect himself against loss

by insurance, and by such an addition to the price of his wares as to

cast the burden ultimately upon the consumer; that indemnity to an

injured employee should be as much a charge upon the business as the

cost of replacing or repairing disabled or defective machinery,

appliances, or tools; that under our present system the loss falls

immediately upon the employee, who is almost invariably unable to bear

it, and ultimately upon the community, which is taxed for the support of

the indigent; and that our present system is uncertain, unscientific,

and wasteful, and fosters a spirit of antagonism between employer and

employee which it is for the interest of the state to remedy."

To these considerations the Court suggests no reply, and upon them it

offers no criticism. On the contrary, it in terms concedes "the strength

of this appeal to recognized and widely prevalent sentiment." It

declares that "no word of praise could overstate the industry and

Intelligence of the Commission" which prepared the New York law, and it

apparently agrees with the conclusion of the Commission, based on "a

most voluminous array of statistical tables, extracts from the works of

philosophical writers, and the industrial laws of many countries"--the

conclusion that "our own system of dealing with industrial accidents is

economically, morally, and legally unsound." But all these

considerations of public policy, social justice, and world-wide

conviction are set aside "as subordinate to the primary question whether

they can be molded into statutes without infringing upon the letter or

spirit of our own written Constitution." The countries which have

adopted this desirable reform, it is said, "are so-called constitutional

monarchies in which, as in England, there is no written constitution,

and the Parliament or lawmaking body is supreme. In our country the

Federal and State Constitutions are the charters which demark the extent

and the limitation of legislative power."

In brief: The change in the law is just: it is demanded by the change

which has taken place in our industrial system; it is all but

universally desired; the experience and the conscience of the civilized

world call for it; but America is powerless to make it under her present

Constitution. Other countries can make it because they are monarchies:

America cannot make it because she is free.

The clause in the Constitution which, in the opinion of the Court of

Appeals, prohibits the legislature from making this wise and just reform

in our law is the clause which provides that "no person shall be ...

deprived of life, liberty, or property without due process of law"--a

prohibition which occurs twice in our Federal Constitution (Amendments V

and XIV), and is to be found in many, very probably in most, State

Constitutions. We believe that the Court of Appeals, in its contention

that this clause in our Constitution prohibits this just and necessary

reform in our industrial laws, is sustained neither by the spirit nor by

the letter of this clause in the Constitution, neither by the history of

its origin and significance nor by the course of judicial interpretation

which has been given to it by the United Slates Supreme Court.

Let the reader stop a moment here and reflect upon the principle

involved in the law enacted in other civilized countries and proposed in

ours. It is not that an employer should be mulcted in damages when he

has been guilty of no fault. It is not that he should be compelled to

pay for his carelessness without an opportunity to prove to the court

that he has not been careless. It is that accidents occurring in the

course of organized industry should be held to have occurred, not to the

individual, but to the industry.

"In everything within the sphere of human activity," says the Court of

Appeals, "the risks which are inherent and unavoidable must fall upon

those who are exposed to them." The jurists of all the civilized

countries of Europe agree that in modern organized industries it is the

industry, not the individual, that is exposed to the accidents. The law

applies to the factory hand for the future the principle heretofore

applied to the seaman in maritime law. The factory hand is henceforth to

be regarded as a "co-adventurer" with the employer in the industry.

Nor is "due process of law" denied by the Workman's Compensation Act. No

damages can be recovered from the employer against his consent without a

suit at law. The statute in terms provides that "any question which

shall arise under this act shall be determined either by agreement or by

arbitration as provided in the Code of Civil Procedure, or by an action

at law as herein provided." And what is provided is that, if the

employer fail to make compensation as provided by the Act, the injured

party or his guardian or executor may sue for the amount. The law does

not deny the employer his day in court. But it redefines the question

for the court to decide. It has not to decide whether the employer is

guilty of fault. His liability does not depend on his fault. The court

has simply to decide whether the accident occurred in the due course of

the business, and, if the employer chooses to raise the question,

whether it was "caused in whole or in part by the serious and willful

misconduct of the workman." If not, the workman is entitled to recover,

and the amount which he is entitled to recover is fixed by the statute.

The question, then, is this:

Does a law which, for accidents in certain carefully defined and

especially dangerous employments, transfers the liability from the

individual to the organization, and which carefully preserves the right

of the employer to submit any questions which arise under the law to the

courts for adjudication, deprive the employer of his property without

due process of law? The Court of Appeals of New York State affirms that

it does. _The Outlook_ affirms that it does not.

To state this question appears to us to answer it. Certainly there is

nothing in the Workman's Compensation Act which violates the _letter_ of

the Constitution. It does not in terms take the property of the employer

without due process of law. How any one can find in the act a violation

of the _spirit_ of the Constitution we find it difficult to conceive.

And that difficulty is enhanced, not relieved, by a careful study of the

opinions of the Court. For in those opinions it is assumed that on its

face the law is unconstitutional, and the Court devotes all its

intellectual energies to an attempt to show that the authorities cited

in opposition are exceptional. That the law and the Constitution are not

inconsistent is, however, established both by a consideration of the

object and intent of the Constitutional provision and by judicial

decisions interpreting it. To these two considerations we now direct the

attention of the reader.

The provision in the federal Constitution that "no person shall be ...

deprived of life, liberty, or property, except by due process of law"

(Fifth Amendment), and the provision, "nor shall any state deprive any

person of life, liberty, or property without due process of law"

(Fourteenth Amendment), are derived from the Great Charter wrested from

King John by the Barons in 1215. "No freeman shall be taken or

imprisoned, or disseized, or outlawed, or banished, or any ways

destroyed, nor will we pass upon him, nor will we send upon him, unless

by the lawful judgment of his peers, or by the law of the land." This is

perhaps the most important of those general clauses in the Great Charter

which, says Hallam in his "History of the Middle Ages," "protect the

personal liberty and property of all freemen by giving security from

arbitrary imprisonment and arbitrary spoliation." Hume gives some

intimation of the abuses that led to this provision: merchants had been

subjected to arbitrary tolls and impositions; the property of the dying

had been seized and their lawful heirs dispossessed; officers of the

Crown had levied on horses and carts in time of peace for their own or

the public service. Green, in his "History of the English People," gives

the picture of John's despotism and of the growing spirit of liberty in

the English common people with greater detail The King's exactions drove

the Barons into alliance with the people. "Illegal exactions, the

seizure of their castles, the preference shown to foreigners, were small

provocations compared with his attacks on the honor of their wives and

daughters." The demand of the common people to substitute due process of

law for wager by battle, and to be secure in their lives, their

liberties, and their property from acts of lawless and irresponsible

power, the Barons made their own, and by the same act claimed for others

what they claimed for themselves. "The under tenants were protected

against all exactions of their lords in precisely the same terms as they

were protected against the lawless exactions of the Crown."

From such a provision for the protection of the fundamental rights of

person and property it is a far cry to the conclusion that the people

cannot remedy the injustice which inflicts all the consequences of

accidents which occur in extrahazardous trades upon the individual who,

in practicing that trade, happens to be subjected to the peril. Common

sense, as well as frequent decisions of the courts, sustain Daniel

Webster's definition of the scope of the Constitutional provision

embodying in our law this provision of the Great Charter: "The meaning

is that every citizen shall hold his life, liberty, and property and

immunities under the protection of general rules which govern society."

That society can never make new rules for the better protection of life,

liberty, and property and immunities, is a doctrine as repugnant to

reason as it is to social progress. It is equally repugnant to the

principle of interpretation laid down by the Supreme Court of the United

States: "The law is perfectly well settled that the first ten amendments

to the Constitution, commonly known as the Bill of Rights, were not

intended to lay down any novel principles of government, but simply to

embody certain guarantees and immunities which we had inherited from our

English ancestors."[77] And it seems never even to have occurred to

English law makers that the Workman's Compensation Act is inconsistent

with this provision of their Great Charter--a charter which is as much a

part of the British constitution as the Fifth and Tenth Amendments are

of ours. In the English Constitution, as in the American, the principle

is carefully defined in writing. The only difference is that in England

the Parliament is the final judge of its meaning; in the United States

that final judge is the Supreme Court of the United States.

At least it ought to be. But the New York Court of Appeals does not

allow that it is the final authority. In this particular case it is not,

for no appeal lies by the plaintiff in this case from the state to the

national court. But an appeal does lie by the public. _The Outlook_ takes

such an appeal. And it declares without hesitation that the decision of

the New York Court of Appeals is in conflict, not only with the trend of

judicial decisions in that Court, but also with its very explicit

statement of the fundamental principles to be applied in interpreting

the Constitution.

We have already noted the fact that maritime law regards a seaman as a

co-adventurer with the shipowner, and therefore makes the ship liable

for his care, keep, and cure in case any accident occurs to him, even

though it be produced by his own fault. We now add that the Supreme

Court of the United States has decided that such a law does not take the

shipowner's property without due process of law. That, says the Court of

Appeals, is different, for "the contract and services of seamen are

exceptional in character ... When he is sick or injured he is entitled

to be cared for at the expense of the ship, and for the failure of the

master to perform his duty in this regard the ship or the owner is

liable." No doubt there is a difference between a seaman on a ship and a

factory hand in a factory. Very probably that difference ought to weigh

with the representatives of the people in determining what difference

there should be in their respective treatment. But if making a ship

liable for accidents happening to a seaman does not take the shipowner's

property without due process of law, then rendering a factory liable for

accidents happening to a factory hand does not lake the factory owner's

property without due process of law. The Constitution of the United

States is precisely the same on sea as on land; but to the Constitution

of the United Slates the Court of Appeals gives one meaning on shipboard

and another meaning in the town.

The right of the legislature to impose new responsibilities upon

property is not confined by the United States Supreme Court to the sea.

It is equally sustained upon the land. The State of Oklahoma provided

for an assessment on all banks in the State in order to create a fund

for the purpose of guaranteeing the depositors in all banks in the

State. The Noble State Bank brought suit against the State to prevent it

from collecting this assessment, on the ground that it was taking

property without due process of law. The Supreme Court, without a

dissenting opinion, held that the act was constitutional, on two

grounds: first, because "it is established by a series of cases that an

ulterior public advantage may justify a comparatively insignificant

taking of private property for what in its immediate purpose is a

private use"; and, second, because "it may be said in a general way

that the police power extends to all the great public needs. It may be

put forth in aid of what is sanctioned by usage or held by the

prevailing morality or strong and preponderant opinion to be greatly and

immediately necessary to the public welfare." A similar case coming

before the Court from the State of Kansas was decided with the same

unanimity by the Court at the same time.[78]

This definition of Constitutional law by the unanimous opinion of the

Supreme Court of the United Slates, if accepted, clearly determines the

constitutionality of the Workman's Compensation Act. That this Act "is

sanctioned by usage and held by the prevailing morality and strong and

preponderant opinion to be greatly and immediately necessary to the

public welfare" is proved by the fact that it is demanded alike by

employer and employee, that it has been approved by the general public,

that it is apparently regarded by the Court of Appeals itself as a

reform much to be desired, and that it has been adopted by every

civilized country in Europe except Switzerland. The New York Court of

Appeals can find only one escape from this declaration of principle by

the highest tribunal in the land, in these two cases, namely, a

repudiation of the authority of that tribunal in these cases: "We cannot

recognize them as controlling our construction of our Constitution."

In this review of the decision of the New York Court of Appeals we have

passed by without comment some extraordinary statements which should not

be passed by in any complete review--the statement that "practically all

of these [European] countries are so-called constitutional monarchies in

which, as in England, there is no written constitution," whereas, in

fact, practically all of the European nations have written

constitutions; and the statement that the Workman's Compensation Act

"does nothing to conserve the health, safety, or morals of the

employee," whereas, in fact, it is aimed and purposed to accomplish all

three results, and was urged in the English House of Lords by Lord

Salisbury specifically on the ground that "to my mind the great

attraction of this bill is that I believe it will turn out a great

machinery for the saving of human life."

But we have deliberately neglected all minor details in an endeavor to

put before our lay readers a true interpretation, and what we hope they

will generally believe to be a just criticism, of this decision of the

highest court of the Empire State. In that decision, in our opinion, the

Court has disregarded all considerations of social justice and public

policy, has set itself against the conscience and judgment of the

civilized world, and in its forced interpretation of the Constitution

has disregarded alike the history of the Constitution's origin and of

its judicial interpretation by the highest court in the land.

APPENDIX II

SOME SUGGESTIONS TO INSTRUCTORS

What is the purpose of a course in the writing of arguments? The

arguments which it turns out cannot convince any one, since there is no

one for them to convince; so that the immediate and tangible product of

the course must be looked on as a by-product, and a by-product from

which there can be no salvage.

What products, then, can teachers aim to produce? First, a vital respect

for facts and for sound reasoning therefrom; second, the power so to

analyze and marshal the facts in an obscure and complicated case as to

bring order and light out of confusion; and third, the appreciation of

other men's point of view and training in the tact which will influence

them. Incidentally a good course in argumentation should leave with its

students an acquaintance with certain effective and economical devices

for going to work that should serve them well in later life.

I will take up each of these points in order, and speak of a few methods

which I have found useful in practice.

In the first place, how can a teacher establish and strengthen the

veneration for fact and the suspicion of all unsupported assertion and

_a priori_ reasoning? Partly by judicious exercises, partly by quiet

guidance in the choice of subjects. Let a class cross-examine each other

on their exact knowledge of the ultimate facts on some familiar subject.

On the question of the value of Latin, for example, just how many of the

class know no Latin? In a piece of their own writing, how many of the

words are derived from the Latin? and what kind of words are they? Of

the leaders in scholarship in the class how many know Latin? Of the best

writers? Of the authors whose works they are studying in English

literature, how many were trained in Latin? Of the authors of the

textbooks in science how many? A few such questions as these will

suggest others; and the members of the class should keep a record of how

many such questions they can answer with precision. Very few people have

any exact command of facts on subjects about which they talk freely and

with authority; and a young man who has had this truth borne in on him

by personal examination will come to writing an argument with more

modesty and scrupulousness.

Then a class can be guided away from the large subjects where of

necessity their knowledge of facts is second-hand, and in which their

arguments, being of necessity short, can touch only the surface of the

subject. Here, I think, is where much of the ineffectiveness of courses

in argument is to be found. "Judges should be elected by direct vote of

the people," "The right of suffrage should be limited by an educational

test," "Corporations engaged in interstate commerce should be required

to take out a federal license," are samples of propositions recommended

as subjects for arguments of two thousand words or less. No

undergraduate has the practical knowledge of affairs to judge the value

of facts adduced in support of such propositions, and except for the

members of debating teams, who spend time on their contests comparable

to that given by athletes to their sports, no undergraduate can make

himself acquainted with the vast fields of economics and governmental

theory covered by such subjects. To write an argument of twelve hundred

words on such a subject will weaken rather than strengthen the respect

for facts.

What sort of subjects, then, can be used? This is, I confess, a question

not altogether easy to answer; but I have had a try at an answer in the

list of Subjects which is given in Chapter I, which can be adapted to

special conditions of time or place. In general a question which a

student would discuss of his own accord and with some warmth is the best

subject for him. There are many such subjects in athletics: at this date

the rules of football seem not yet settled beyond amendment, and the

material for hunting facts in the records of past games is large; Dean

Briggs of Harvard is making an appeal to players to raise the level of

manners and of ethics in baseball; do all your students agree with him?

Should the universities be allowed to use men in their graduate schools

as members of their teams? And what are the facts about the playing of

such men in the universities in which your students would be interested?

Then there are various educational questions, on which the views of

students have real value, especially if they are based on some

examination of facts in the course of writing an argument. President

Lowell of Harvard told a body of students whom he was consulting that it

did not make much difference what they wanted, but that their views when

set forth for the purpose of helping the authorities of the college were

of great value. The views of your class on examinations for entrance

would be based on knowledge which a member of the faculty cannot have at

first-hand. What is the estimate of the relative difficulty of getting

into various colleges, and on what figures from schools is the estimate

based? For how many boys are languages easier or harder than history or

mathematics or science? Does admission by certificate provide sufficient

safeguard for the standards of the college? Does a rigid prescription of

subjects for examination distort the course for the high school? How

many boys, who can be named, had their education injured by such

prescription? Should the standard for entrance or for graduation be

raised, or lowered, at your college? Should honor students be excused

from final examinations? Should they have special privileges? Should

freshmen be required to be within college bounds at a fixed hour every

night? Should class rushes be abolished? Here are only a few suggestions

of subjects which can be adapted to the needs and the knowledge of

special classes. They are of no value, however, unless the students are

driven to gather facts, and to reason from these facts, not from general

impressions. School catalogues, college catalogues, informal censuses,

reports of presidents and of committees, and other printed or oral

sources will help in the gathering of facts.

Then there are the innumerable local and state questions that touch the

fathers of at least half of any class, and that the sons may be in the

way of hearing discussed at home, or may be sent to hear discussed in

legislatures and city councils. Every instructor who takes a daily

newspaper will be provided with more of these subjects than his class

can use. For their facts the students can go to the newspapers, to

printed reports, to the persons who are concerned with the questions

which they are going to argue. In some cases the students will get

valuable interest and advice from the older men who have the active

charge of the questions under discussion; and it is not inconceivable,

that if some of the latter happen to be graduates of the college or

school, they will even read the arguments and make helpful criticisms on

them. The grateful interest of graduates is a source which has not been

overdrawn for aid in the processes of instruction.

Many of the subjects which I have here offered as suggestions can be

discussed in part, at any rate, within the space of an editorial

article; and that I conceive to be about the length which most arguments

written by students, except those in special courses, will run to. In so

short a space, it is hardly necessary to point out, evidence cannot be

presented and discussed with the detail, say, of Webster's "Speech in

the White Murder Case." It would be a good separate exercise to call for

such detailed presentation of evidence on some single point in the

argument. With most classes, however, the instructor cannot do much more

than rule out wholly unsupported assertion, and insist that the

distinction between fact and inference from fact shall be kept in sight.

The second of the results which an instructor in a course in

argumentation should aim for is the power to analyze complicated masses

of facts and so arrange them and present them as to bring order out of

confusion. President Taft has said that Justice Hughes "won his

reputation at the bar by his gift of boring to the innermost core of a

subject"; and that is what the drill on the introduction to the brief

should to some degree impart to students. The orderly analysis of the

question, step by step, according to the admirable scheme devised by

Professor Baker, cannot help implanting some understanding of what it

means to go to the heart of a question. Every man sooner or later, must

face complicated and puzzling questions; and the ordinary man will give

himself a long start if he will thus put down on paper the points that

can be urged on the two sides of a question, and then study them until

the real points at issue emerge. Then the drill in laying out the

logical skeleton of an argument, so plainly that no false or broken

connection can escape detection, will strengthen the conscience for

clearness and coherence of thought; and the necessity for getting back

to ultimate facts for every assertion, and putting down the source from

which the facts are derived, will help to implant a wholesome respect

for facts as something different from assertion.

Since the argument written out is the final test of the thinking, some

care must be taken that students do not obscure by careless paragraphing

and slovenly sentences such clearness of thought as they have attained

in their brief. I have found it useful to prescribe marginal titles to

the paragraphs: a student who has struggled to find a single phrase that

will cover all of a sprawling paragraph will have learned some respect

for firmness of paragraphing. In general, an instructor has a right to

insist that his class shall apply in practice all that they have learned

about the ordinary devices for getting clearness and emphasis.

In the third place, this practice in writing arguments ought to leave

with students a more developed idea of how to make readers look

favorably on a proposition which they are urging. I have insisted, at

the risk of seeming repetitious, on the need of considering the audience

whose minds are to be won over; for what persuasiveness can mean apart

from specific persons to persuade I cannot conceive. Much of the

perfunctory emptiness of the textbooks when they get to this part of the

subject comes from neglecting this very practical and obvious side of

making an argument. The difficulty it raises for arguments written in

class work is just as obvious; more than most kinds of composition

written for practice, arguments run the risk of having no touch with

reality. Something may be done, however, if an instructor guides his

class toward the kind of questions I have suggested above: an argument

on the rules of football would be addressed to the Rules Committee, and

most youths would know something of the prepossessions of so famous a

man as Mr. Camp; an argument on a college question would be addressed

to the faculty or the president, and it may be assumed that students

have some idea of their general attitude on such matters. I have

followed the practice in my own sections of freshmen of requiring them

to put at the head of their brief and of their argument the audience

which they had in mind. Then when one comes to criticism and conference

one can by a little cross-examination bring home to them the very

practical nature of this matter of persuasion.

One must be careful not to insist too strictly on the model and the

scheme of work laid down here, and in practically the same form in other

books. It is the best that has yet been devised, but any student who is

set to making a brief of one of the examples of argument at the end of

this book will see for himself that there is no one infallible way of

making an argument. Each argument must adapt itself to its occasion and

its audience; and an instructor will be wise to keep himself awake to

this truth by noting divergencies from the model. The rules which are

here set forth and the model which is built on them are serviceable just

so long as they are serviceable, and no longer. Their chief service is

done when they have set up in the minds of students a standard of

effectiveness in singling out and emphasizing the critical issues of a

question.

As to the exercises which should accompany the work in argument my

experience with classes of five to six hundred freshmen leads me to

think that their value to the student can hardly be overestimated. I

will speak here of a few of them.

The exercises in the use of reference books is something that every

student ought to be put through. I found it simple and not too

extravagant of time to take my sections to the library in squads of ten

or a dozen, and show them and let them handle the principal books on the

list. Then on the spot I gave each of them a sheet of theme paper on

which I had written some sort of fact drawn from one of these books, and

told them to look up that fact and report on it. My object was to

convince them that most ordinary facts can be looked up in less than

five minutes. The material for this exercise I got by turning over the

reference books and jotting down almost anything that caught my eye. One

can in this way get a great variety of facts in a very short time. In

some libraries it might be possible to get members of the library staff

to share in this instruction; in all libraries one will find active

cooperation.

For the preliminary work on the argument we found that it was often

practicable and advisable to let the students pair off on the two sides

of the question, and work together through all the preliminaries. Two

men thus working together often discuss themselves into the liveliest

kind of interest in their question; and almost always they come closer

to the important issues involved by sharpening their wits against each

other. Their arguments, too, are better, especially in the refutation,

from their knowing just what points can be made on the other side.

It is excellent practice, not only for the brief and the argument, but

also for all other college work, to set the students to making briefs of

parts or wholes of the arguments printed here as examples, or of other

arguments found outside. Not only lawyers, but other men of affairs,

constantly have to digest and summarize papers; and skill in picking out

essential facts and the thread of thought from a document is a highly

valuable asset for practical life. The exercise is sometimes irksome to

students, for it is hard work at first and calls for concentration of

mind: but it can be sweetened and made livelier by the competition of

classroom discussion.

All through the work on the argument students may well be set to

watching the daily papers and the magazines for examples of arguments,

and of good and bad reasoning. Very often an instructor can get, at the

cost of a cent or two apiece, a set of arguments printed in a newspaper

for his class to analyze. Senators and representatives in Congress are

notably willing to send copies of speeches, and these sometimes furnish

good examples of both sound and unsound reasoning.

If time serves, instructors will do well to give a grounding in logic. I

have inserted a brief discussion of the subject with the hope that it

will furnish a basis for a short study; it can be reenforced by a few

weeks on such a manual as Jevons's "Primer of Logic," or Bode's "Outline

of Logic" if there is time. Whatever be one's view of the positive value

of deductive logic, there can be no doubt that every student should have

some knowledge of the canons of inductive logic, and that a study of

propositions and syllogisms is a mighty sharpener of the discrimination

for the real meaning of words and sentences.

The short chapter on debating I have added for the use of classes where

a moderate amount of training in this most useful of exercises is

practicable. Debating may be looked at in two ways, either as training

in alertness and effectiveness in discussion, or as a form of

intercollegiate or interscholastic sport. On the latter aspect a

recognized authority has said: "Formal debate is a kind of game. In the

time limit, the order of speakers, the alternation of sides, the give

and take of rebuttal, the fixed rules of conduct, the ethics of the

contest, the qualifications for success, and the final awarding of

victory, debate has much in common with tennis";[79] and he develops the

likeness through a page of rather fine print. From this point of view

debating has keenly interested a small body of students; in some

colleges it has been recognized by hatbands or other emblems of

distinction for the successful "teams"; and it has developed an

elaborate apparatus of rules and of "coaches." With the game in this

full bloom I have not space to deal in this small book; for such

elaborate work of analysis and preparation one must go to special

manuals which deal with it at length. I have confined myself to an

application of the general principles of the subject to the spoken

argument, and to a few suggestions for preparing for and carrying on the

not very formal discussions which the average man gets into in the

ordinary run of life.

Even where there is not time for systematic practice in debating, much

may be done by extemporaneous five-minute speeches. There is

unquestionably an active movement among the best teachers of English for

more stress on oral composition; they recognize that the power to stand

quietly and at one's ease on one's feet and explain one's views clearly

and cogently will help any man in his life work.

In some cases there may be local or academic subjects under discussion

at the time the class is working on argument on which they can prepare

themselves to speak. It may be possible to interest graduates of the

school and college, so that they will give help in getting material, and

perhaps in judging and criticizing. Occasionally, perhaps, a man who has

the actual settlement of a local question or a share in the settlement

may be willing to hear the discussion. Any aid of this sort that will

bring the debate within the bounds of reality will add zest to it.

For the use of this book when a comparatively short time, perhaps six

weeks, is at the disposal of the instructor, my advice, based on the

practice worked out with my colleagues in the freshman course at

Harvard, would be to begin with Chapter I, and at the same time ask the

class to hand in subjects for approval. This should be done a fortnight

ahead of the main work, in order to allow changes of subject, after

consultation if necessary. In connection with Chapter II would come

exercises in making briefs of one or more of the arguments in the back

of the book or of others provided for the purpose. Then would come the

preliminary work on the brief, the introduction to the brief. This it is

profitable to treat as a separate piece of work, with a grade of its

own. At this stage would be the place for the exercises in the use of

reference books, which will lead naturally to looking up the material

for the brief. If possible a conference should be given on the

introduction to the brief. Then comes the next main step in the work,

the brief. The work for this would naturally be accompanied by study of

Chapter III, and by such exercises in the correction of bad briefing and

in correction of fallacies as the instructor finds time for. There

should be another conference on the brief, and it should be rewritten if

necessary. Instructors who have been through the subject will know from

sad experience that one rewriting and one conference may be only

starters. Then comes the argument itself: this should be the climax, and

not merely a perfunctory filling out of the brief. If it be at all

possible, the argument should be rewritten after a conference, and the

conference can hardly be too long. If the argument is fifteen hundred or

two thousand words long, a half an hour will be found a short time to go

over the whole with any thoroughness. No instructor in English needs to

have it pointed out that conferences are his most efficient means of

education.

FOOTNOTES:

[Footnote 1: See Lincoln's speech at Galesburg and at Quincy, in the

Lincoln-Douglas debates.]

[Footnote 2: O. W. Holmes, Jr., The Common Law, Boston, 1881, p. 35.]

[Footnote 3: For such changes of fashion in literature see Stevenson's

Gossip on Romance and A Humble Remonstrance in "Memories and Portraits,"

and The Lantern Bearers in "Across the Plains."]

[Footnote 4: From the speech on the Repeal of the Union with Ireland;

quoted by W. T. Foster, Argumentation and Debating, Boston, 1908, p,

90.]

[Footnote 5: A. Sidgwick, The Application of Logic, London, 1910, pp.

40, 44.]

[Footnote 6: From the speech of Senator Depew, January 24,

1911.]

[Footnote 7: C. R. Woodruff, City Government by Commission, New York,

1911, p. 11.]

[Footnote 8: A. Sidgwick, The Application of Logic, London, 1910, p.

248.]

[Footnote 9: W. Bagchot, The Metaphysical Basis of Toleration,

"Works," Hartford, Connecticut, 1889, Vol. II, p. 339.]

[Footnote 10: From Huxley's first Lecture on Evolution (see p. 233).]

[Footnote 11: C.R. Woodruff, City Government by Commission, New York,

1911, p. 6]

[Footnote 12: See Lincoln's speech at Ottawa.]

[Footnote 13: _The Outlook_, November 20, 1909. See also the example

quoted on page 180, from William James's Will to Believe.]

[Footnote 14: A full and very readable account of the growth of the law

of evidence and the changes in the system of trial by jury will be found

in J. B. Thayer's Preliminary Treatise on the Law of Evidence, Boston,

1896.]

[Footnote 15: George Bemis, Report of the Case of John W. Webster,

Boston, 1850, p. 462. Quoted in part by A.S. Hill, Principles of

Rhetoric, p. 340.]

[Footnote 16: H. Münsterberg. On the Witness Stand, New York, 1908, p.

51.]

[Footnote 17: _The Nation_, New York, Vol. XCI, p. 603, In a review of J.

Bigelow, Jr.'s Campaign of Chancellorsville.]

[Footnote 18: Mr. Gardiner was answering Father Gerard's book on the

Gunpowder Plot.]

[Footnote 19: S. R. Gardiner, What Gunpowder Plot Was, London, 1897, pp.

4-11.]

[Footnote 20: Wines and Koren, The Liquor Problem. Published by the

Committee of Fifty, Boston, 1897.]

[Footnote 21: Reprinted in Educational Reform, New York, 1898. See p.

381.]

[Footnote 22: A committee appointed by the National Educational

Association to recommend a course of study for secondary schools.]

[Footnote 23: H. Münsterberg, On the Witness Stand, New York, 1908, p.

39.]

[Footnote 24: W. James, Psychology, New York, 1890, Vol. II, p. 330; B.H.

Bode, An Outline of Logic, New York. 1910, p. 216.]

[Footnote 25: B. H. Bode, An Outline of Logic, New _York_, 1910, p. 170.]

[Footnote 26: C. R. Woodruff, City Government by Commission, p. 184.]

[Footnote 27: Professor John Trowbridge, in the _Harvard Graduates

Magazine_, for March, 1911.]

[Footnote 28: W. James, Human Immortality, Boston, 1898, p. 11.]

[Footnote 29: B. H. Bode, An Outline of Logic, New York, 1910, p. 162.]

[Footnote 30: The Origin of Species, London, 1875, p. 63.]

[Footnote 31: "There is only one aim in all generalization--the finding

of signs that are fit to be trusted, so that, given one fact, another

may be inferred."--A. Sidgwick, The Process of Argument, London, 1893,

p. 108.

"The whole object of any class name is to group together (for the

purpose of making general assertions) individual members which are not

only alike but different; and so to give unity in spite of

difference."--A. Sidgwick, The Use of Words in Reasoning, London, 1901,

p. 165.]

[Footnote 32: W. James, Psychology, New York, 1890, Vol. II, p. 342.]

[Footnote 33: See B. Bosanquet, The Essentials of Logic, London, 1895, p.

162; A. Sidgwick, The Process of Argument, London, 1893, chap. vi; B.H.

Bode, An Outline of Logic, New York, 1910, p. 234.]

[Footnote 34: A. Sidgwick, Fallacies, New York, 1884, p. 342.]

[Footnote 35: A. Sidgwick, Fallacies, New York, 1884, P. 345.]

[Footnote 36: A. Sidgwick, The Use of Words in Reasoning, London, 1901,

p. 91.]

[Footnote 37: J.S. Mill, A System of Logic, Book III, chap. iii, sect. 2;

quoted by E.H. Bode, An Outline of Logic, New York, 1910, p. 109.]

[Footnote 38: Quoted by A. Sidgwick, The Use of Words in Reasoning,

London, 1901, p. 28, note.]

[Footnote 39: See also the next to last paragraph of the argument on The

Workman's Compensation Act, p. 268.]

[Footnote 40: New York, March 9, 1911, p. 241.]

[Footnote 41: B. H. Bode, An Outline of Logic, New York, 1910, p. 71.]

[Footnote 42: W. James, Psychology, New York, 1890, Vol. II, p. 365.]

[Footnote 43: Abraham Lincoln, Complete Works, edited by Nicolay and Hay,

New York, 1894, p. 445.]

[Footnote 44: C. R. Woodruff, City Government by Commission, New York,

1911, p. 186.]

[Footnote 45: B. H. Bode, An Outline of Logic, New York, 1910, p. 86. For

another example see Luke XX, I 8.]

[Footnote 46: From the Essay on Warren Hastings, The Works of Lord

Macaulay, London, 1879, Vol. VI, p. 567.]

[Footnote 47: The Works of Daniel Webster, Boston, 1851, Vol. VI, p. 62.]

[Footnote 48: B.H. Bode, An Outline of Logic, New York, 1910, p. 30.]

[Footnote 49: Sidgwick, The Use of Words in Reasoning, London, 1901, p.

192.]

[Footnote 50: See, for example, his Apologia pro Vita Sua, London, 1864,

pp. 192, 329.]

[Footnote 51: Newman, The Idea of a University, London, 1875, p. 20.]

[Footnote 52: Felix Adler; quoted by Foster. Argumentation and

Debating, Boston, 1908, p. 168.]

[Footnote 53: From the Essay on Milton, The Works of Lord Macaulay,

London, 1879, Vol. V, p. 28.]

[Footnote 54: C.W. Eliot, Educational Reform, New York, 1898, p. 375.]

[Footnote 55: W. James, The Will to Believe, New York, 1897, p. 3.]

[Footnote 56: _The Atlantic Monthly_, Vol. CVII, p, 14.]

[Footnote 57: It was invented and developed by Professor George P. Baker

in the first edition of his Principles of Argumentation, Boston, 1895.]

[Footnote 58: Lamont, Specimens of Exposition.]

[Footnote 59: See the passage from James's Psychology, p. 150.]

[Footnote 60: Reprinted in Baker's Specimens of Argumentation, New York,

1897.]

[Footnote 61: _World's Work_, Vol. XXI, p. 14242]

[Footnote 62: From the stenographic report of the argument; reprinted in

the author's Forms of Prose Literature, New York, 1900, p. 316.]

[Footnote 63: W. James, The Will to Believe, New York, 1897, p. 7.]

[Footnote 64: See Baker and Huntington, Principles of Argumentation,

Boston, 1305, p. 415.]

[Footnote 65: Fuller discussion of the rules for the distribution of the

speakers and the time will be found in Baker and Huntington, Principles

of Argumentation, p. 415; and an elaborate, almost legal, set of

instructions to judges, and the agreement of a tricollegiate league, in

Foster, Argumentation and Debating, Boston, 1908, pp. 466, 468.]

[Footnote 66: Suggestions of points for the judges to consider will be

found in Pattee, Practical Argumentation, p. 300; and format

instructions in Foster, Argumentation and Debating, Boston, 1908, p.

466.]

[Footnote 67: Lecture I of three Lectures on Evolution. From American

Addresses, London, 1877.]

[Footnote 68: The diagram, which is not reproduced here, gives an ideal

section of the crust of the earth, showing the various strata lying one

under the other. The strata are divided by geologists into three groups:

the Primary, which is the oldest and deepest; the Secondary, above that;

and the Tertiary and Quaternary on top. The Cretaceous is the lowest

stratum of the Tertiary.]

[Footnote 69: One of the upper strata of the Primary rocks.]

[Footnote 70: The Silurian rocks occur about the middle of the Primary

formations. The _eozoön_ was formerly supposed by some geologists to be

a form of fossil. The Laurentian rocks are the lowest strata of the

Primary formations.]

[Footnote 71: The Jurassic formation occurs about the middle, the

Triassic, just below it, in the lower half of the Secondary rocks. The

Devonian occurs just above the middle of the Secondary, between the

Carboniferous above and the Silurian below.]

[Footnote 72: From _The Popular Science Monthly_, July, 1901.]

[Footnote 73: Knowledge of the cause.]

[Footnote 74: Prevention.]

[Footnote 75: _The Outlook_, April 29, 1911.]

[Footnote 76: Probably the reason why it has not yet been adopted by

Switzerland is because her organized manufacturing Industries are so few

that no pressure has been brought upon the state to change the law.]

[Footnote 77: Robertson _vs_. Baldwin, United States, 281.]

[Footnote 78: Noble State Bank _vs_. Haskell; Shallenberger _vs_. Bank of

Holstein, January 3, 1911. Lawyers' Cooperative Publishing Company,

Rochester, New York.]

[Footnote 79: Foster, Argumentation and Debating, p. 281.]

End of Project Gutenberg's The Making of Arguments, by J. H. Gardiner