In the great Carboniferous formation,[69] whence America derives so vast a proportion of her actual and potential wealth, in the beds of coal which have been formed from the vegetation of that period, we find abundant evidence of the existence of terrestrial animals. They have been described, not only by European but by your own naturalists. There are to be found numerous insects allied to our cockroaches. There are to be found spiders and scorpions of large size, the latter so similar to existing scorpions that it requires the practiced eye of the naturalist to distinguish them. Inasmuch as these animals can be proved to have been alive in the Carboniferous epoch, it is perfectly clear that, if the Miltonic account is to be accepted, the huge mass of rocks extending from the middle of the Paleozoic formations to the uppermost members of the series, must belong to the day which is termed by Milton the sixth. But, further, it is expressly stated that aquatic animals took their origin upon the fifth day, and not before; hence, all formations in which remains of aquatic animals can be proved to exist, and which therefore testify that such animals lived at the time when these formations were in course of deposition, must have been deposited during or since the period which Milton speaks of as the fifth. But there is absolutely no fossiliferous formation in which the remains of aquatic animals are absent. The oldest fossils in the Silurian rocks[70] are exuviae of marine animals; and if the view which is entertained by Principal Dawson and Dr. Carpenter respecting the nature of the eozooen be well founded, aquatic animals existed at a period as far antecedent to the deposition of the coal as the coal is from us; inasmuch as the eozooen is met with in those Laurentian strata which lie at the bottom of the series of stratified rocks. Hence it follows, plainly enough, that the whole series of stratified rocks, if they are to be brought into harmony with Milton, must be referred to the fifth and sixth days, and that we cannot hope to find the slightest trace of the products of the earlier days in the geological record. When we consider these simple facts, we see how absolutely futile are the attempts that have been made to draw a parallel between the story told by so much of the crust of the earth as is known to us and the story which Milton tells. The whole series of fossiliferous stratified rocks must be referred to the last two days; and neither the Carboniferous, nor any other, formation can afford evidence of the work of the third day.

Not only is there this objection to any attempt to establish a harmony between the Miltonic account and the facts recorded in the fossiliferous rocks, but there is a further difficulty. According to the Miltonic account, the order in which animals should have made their appearance in the stratified rocks would be this: Fishes, including the great whales, and birds; after them, all varieties of terrestrial animals except birds.

Nothing could be further from the facts as we find them; we know of not the slightest evidence of the existence of birds before the Jurassic, or perhaps the Triassic, formation;[71] while terrestrial animals, as we have just seen, occur in the Carboniferous rocks.

If there were any harmony between the Miltonic account and the circumstantial evidence, we ought to have abundant evidence of the existence of birds in the Carboniferous, the Devonian, and the Silurian rocks. I need hardly say that this is not the case, and that not a trace of birds makes its appearance until the Tar later period which I have mentioned.

And again, if it be true that all varieties of fishes and the great whales, and the like, made their appearance on the fifth day, we ought to find the remains of these animals in the older rocks—in those which were deposited before the Carboniferous epoch. Fishes we do find, in considerable number and variety; but the great whales are absent, and the fishes are not such as now live. Not one solitary species of fish now in existence is to be found in the Devonian or Silurian formations. Hence we are introduced afresh to the dilemma which I have already placed before you: either the animals which came into existence on the fifth day were not such as those which are found at present, are not the direct and immediate ancestors of those which now exist; in which case either fresh creations of which nothing is said, or a process of evolution must have occurred; or else the whole story must be given up as not only devoid of any circumstantial evidence, but contrary to such evidence as exists.

I placed before you in a few words, some little time ago, a statement of the sum and substance of Milton's hypothesis. Let me now try to state as briefly, the effect of the circumstantial evidence bearing upon the past history of the earth which is furnished, without the possibility of mistake, with no chance of error as to its chief features, by the stratified rocks. What we find is, that the great series of formations represents a period of time of which our human chronologies hardly afford us a unit of measure. I will not pretend to say how we ought to estimate this time, in millions or in billions of years. For my purpose, the determination of its absolute duration is wholly unessential. But that the time was enormous there can be no question.

It results from the simplest methods of interpretation, that leaving out of view certain patches of metamorphosed rocks, and certain volcanic products, all that is now dry land has once been at the bottom of the waters. It is perfectly certain that, at a comparatively recent period of the world's history—the Cretaceous epoch—none of the great physical features which at present mark the surface of the globe existed. It is certain that the Rocky Mountains were not. It is certain that the Himalaya Mountains were not. It is certain that the Alps and the Pyrenees had no existence. The evidence is of the plainest possible character, and is simply this:—We find raised up on the flanks of these mountains, elevated by the forces of upheaval which have given rise to them, masses of Cretaceous rock which formed the bottom of the sea before those mountains existed. It is therefore clear that the elevatory forces which gave rise to the mountains operated subsequently to the Cretaceous epoch; and that the mountains themselves are largely made up of the materials deposited in the sea which once occupied their place. As we go back in time, we meet with constant alternations of sea and land, of estuary and open ocean; and, in correspondence with these alternations, we observe the changes in the fauna and flora to which I have referred.

But the inspection of these changes gives us no right to believe that there has been any discontinuity in natural processes. There is no trace of general cataclysms, of universal deluges, or sudden destructions of a whole fauna or flora. The appearances which were formerly interpreted in that way have all been shown to be delusive, as our knowledge has increased and as the blanks which formerly appeared to exist between the different formations have been filled up. That there is no absolute break between formation and formation, that there has been no sudden disappearance of all the forms of life and replacement of them by others, but that changes have gone on slowly and gradually, that one type has died out and another has taken its place, and that thus, by insensible degrees, one fauna has been replaced by another, are conclusions strengthened by constantly increasing evidence. So that within the whole of the immense period indicated by the fossiliferous stratified rocks, there is assuredly not the slightest proof of any break in the uniformity of Nature's operations, no indication that events have followed other than a clear and orderly sequence.

That, I say, is the natural and obvious teaching of the circumstantial evidence contained in the stratified rocks. I leave you to consider how far, by any ingenuity of interpretation, by any stretching of the meaning of language, it can be brought into harmony with the Miltonic hypothesis.

There remains the third hypothesis, that of which I have spoken as the hypothesis of evolution; and I purpose that, in lectures to come, we should discuss it as carefully as we have considered the other two hypotheses. I need not say that it is quite hopeless to look for testimonial evidence of evolution. The very nature of the case precludes the possibility of such evidence, for the human race can no more be expected to testify to its own origin, than a child can be tendered as a witness of its own birth. Our sole inquiry is, what foundation circumstantial evidence lends to the hypothesis, or whether it lends none, or whether it controverts the hypothesis. I shall deal with the matter entirely as a question of history. I shall not indulge in the discussion of any speculative probabilities. I shall not attempt to show that Nature is unintelligible unless we adopt some such hypothesis. For anything I know about the matter, it may be the way of Nature to be unintelligible; she is often puzzling, and I have no reason to suppose that she is bound to fit herself to our notions.

I shall place before you three kinds of evidence entirely based upon what is known of the forms of animal life which are contained in the series of stratified rocks. I shall endeavor to show you that there is one kind of evidence which is neutral, which neither helps evolution nor is inconsistent with it. I shall then bring forward a second kind of evidence which indicates a strong probability in favor of evolution, but does not prove it; and, lastly, I shall adduce a third kind of evidence which, being as complete as any evidence which we can hope to obtain upon such a subject, and being wholly and strikingly in favor of evolution, may fairly be called demonstrative evidence of its occurrence.



THE TRANSMISSION OF YELLOW FEVER BY MOSQUITOES

GEORGE M. STERNBERG, M.D., L.L.D, SURGEON-GENERAL U.S. ARMY[72]

This article is a scientific demonstration of a new fact. It shows clearly the processes of scientific reasoning based on the methods known to Logic as the Methods of Agreement and Difference. The theory that the germs of the disease are carried by mosquitoes seems first to have suggested itself to Dr. Sternberg and to Dr. Finlay through noticing a similarity of phenomena in many cases under different conditions. Yet, however plausible, the theory, neither of them could declare that he had discovered the fact until the experiments carried on under rigorous precautions had been tried. By these experiments all other causes were ruled out of consideration.

The discoveries which have been made in the past twenty-five years with reference to the etiology[73] of infectious diseases constitute the greatest achievement of scientific medicine and afford a substantial basis for the application of intelligent measures of prophylaxis.[74] We know the specific cause ("germ") of typhoid fever, of pulmonary consumption, of cholera, of diphtheria, of erysipelas, of croupous pneumonia, of the malarial fevers, and of various other infectious diseases of man and of the domestic animals, but, up to the present time, all efforts to discover the germ of yellow fever have been without success. The present writer, as a member of the Havana Yellow Fever Commission, in 1879, made the first systematic attempt to solve the unsettled questions relating to yellow fever etiology by modern methods of research.

Naturally the first and most important question to engage my attention was that relating to the specific infectious agent, or "germ," which there was every reason to believe must be found in the bodies of infected individuals. Was this germ present in the blood, as in the case of relapsing fever; or was it to be found in the organs and tissues which upon post-mortem examination give evidence of pathological changes, as in typhoid fever, pneumonia, and diphtheria; or was it to be found in the alimentary canal, as in cholera and dysentery?

The clinical history of the disease indicated a general blood infection. As my equipment included the best microscopical apparatus made, I had strong hopes that in properly stained preparations of blood taken from the circulation of yellow fever patients my Zeiss 1-18 oil immersion objective would reveal to me the germ I was in search of. But I was doomed to disappointment. Repeated examinations of blood from patients in every stage of the disease failed to demonstrate the presence of microorganisms of any kind. My subsequent investigations in Havana, Vera Cruz, and Rio de Janeiro, made in 1887, 1888, and 1889, were equally unsuccessful. And numerous competent microscopists of various nations have since searched in vain for this elusive germ. Another method of attacking this problem consists in introducing blood from yellow fever patients or recent cadavers into various "culture media" for the purpose of cultivating any germ that might be present. Extended researches of this kind also gave a negative result, which in my final report I stated as follows:

The specific cause of yellow fever has not yet been demonstrated.

It is demonstrated that microorganisms, capable of development in the culture media usually employed by the bacteriologists, are only found in the blood and tissues of yellow fever cadavers in exceptional cases, when cultures are made very soon after death.

Since this report was made, various investigators have attacked the question of yellow fever etiology, and one of them has made very positive claims to the discovery of the specific germ. I refer to the Italian bacteriologist, Sanarelli. His researches were made in Brazil, and, singularly enough, he found in the blood of the first case examined by him a bacillus. It was present in large numbers, but this case proved to be unique, for neither Sanarelli nor any one else has since; found it in such abundance. It has been found in small numbers in the blood and tissues of yellow fever cadavers in a certain number of the cases examined. But carefully conducted researches by competent bacteriologists have failed to demonstrate its presence in a considerable proportion of the cases, and the recent researches of Reed, Carroll, and Agramonte, to which I shall shortly refer, demonstrate conclusively that the bacillus of Sanarelli has nothing to do with the etiology of yellow fever.

So far as I am aware, Dr. Carlos Finlay, of Havana, Cuba, was the first to suggest the transmission of yellow fever by mosquitoes. In a communication made to the Academy of Sciences of Havana, in October, 1881, he gave an account of his first attempts to demonstrate the truth of his theory. In a paper contributed to The Edinburgh Medical Journal in 1894, Dr. Finlay gives a summary of his experimental inoculations up to that date as follows:

A summary account of the experiments performed by myself (and some also by my friend, Dr. Delgado), during the last twelve years, will enable the reader to judge for himself. The experiment has consisted in first applying a captive mosquito to a yellow fever patient, allowing it to introduce its lance and to fill itself with blood; next, after the lapse of two or more days, applying the same mosquito to the skin of a person who is considered susceptible to yellow fever: and, finally, observing the effects, not only during the first two weeks, but during periods of several years, so as to appreciate the amount of immunity that should follow.

Between the 30th of June, 1881, and the 2d of December, 1893, eighty-eight persons have been so inoculated. All were white adults, uniting the conditions which justify the assumption that they were susceptible to yellow fever. Only three were women. The chronological distribution of the inoculations was as follows: seven in 1881, ten in 1883, nine in 1885, three in 1886, twelve in 1887, nine in 1888, seven in 1889, ten in 1890, eight in 1891, three in 1892, and ten in 1893.

The yellow fever patients upon whom the mosquitoes were contaminated were, almost in every instance, well-marked cases of the albuminuric or melanoalbuminuric forms, in the second, third, fourth, fifth, or sixth day of the disease. In some of the susceptible subjects, the inoculation was repeated when the source of the contamination appeared uncertain.

Among the eighty-seven who have been under observation, the following results have been recorded:

Within a term of days, varying between five and twenty-five after the inoculation, one presented a mild albuminuric attack, and thirteen, only "acclimation fevers."

* * * * *

While Finlay's theory appeared to be plausible and to explain many of the facts relating to the etiology of yellow fever, his experimental inoculations not only failed to give it substantial support, but the negative results, as reported, by himself, seemed to be opposed to the view that yellow fever is transmitted by the mosquito. It is true that he reports one case which "presented a mild albuminuric attack" which we may accept as an attack of yellow fever. But in view of the fact that this case occurred in the city of Havana, where yellow fever is endemic, and of the eighty-six negative results from similar inoculations, the inference seemed justified that in this case the disease was contracted in some other way than as a result of the so-called "mosquito inoculation." The thirteen cases in which only "acclimation fevers" occurred "within a term of days varying between five and twenty-five after the inoculation" appeared to me to have no value as giving support to Finlay's theory; first, because these "acclimation fevers" could not be identified as mild cases of yellow fever; second, because the ordinary method of incubation in yellow fever, is less than five days; and, third, because these individuals, having recently arrived in Havana, were liable to attacks of yellow fever, or of "acclimation fever" as a result of their residence in this city and quite independently of Dr. Finlay's mosquito inoculations. For these reasons Dr. Finlay's experiments failed to convince the medical profession generally of the truth of his theory relating to the transmission of yellow fever, and this important question remained in doubt and a subject of controversy. One party regarded the disease as personally contagious and supposed it to be communicated directly from the sick to the well, as in the case of other contagious diseases, such as smallpox, scarlet fever, etc. Opposed to this theory was the fact that in innumerable instances nonimmune persons had been known to care for yellow-fever patients as nurses, or physicians, without contracting the disease; also the fact that the epidemic extension of the disease depends upon external conditions relating to temperature, altitude, rainfall, etc. It was a well-established fact that the disease is arrested by cold weather and does not prevail in northern latitudes or at considerable altitudes. But diseases which are directly transmitted from man to man by personal contact have no such limitations. The alternate theory took account of the above-mentioned facts and assumed that the disease was indirectly transmitted from sick to well, as is the case in typhoid fever and cholera, and that its germ was capable of development external to the human body when conditions were favorable. These conditions were believed to be a certain elevation of the temperature, the presence of moisture and suitable; organic pabulum (filth) for the development of the germ. The two first-mentioned conditions were known to be essential, the third was a subject of controversy.

Yellow fever epidemics do not occur in the winter months in the temperate zone and they do not occur in arid regions. As epidemics have frequently prevailed in seacoast cities known to be in an insanitary condition, it has been generally assumed that the presence of decomposing organic material is favorable for the development of an epidemic and that, like typhoid fever and cholera, yellow fever is a "filth disease." Opposed to this view, however, is the fact that epidemics have frequently occurred in localities (e.g. at military posts) where no local insanitary conditions were to be found. Moreover, there are marked differences in regard to the transmission of the recognized filth diseases—typhoid fever and cholera—and yellow fever. The first-mentioned diseases are largely propagated by means of a contaminated water supply, whereas there is no evidence that yellow fever is ever communicated in this way. Typhoid fever and cholera prevail in all parts of the world and may prevail at any season of the year, although cholera, as a rule, is a disease of the summer months. On the other hand, yellow fever has a very restricted area of prevalence and is essentially a disease of seaboard cities and of warm climates. Evidently neither of the theories referred to accounts for all of the observed facts with reference to the endemic prevalence and epidemic extension of the disease under consideration.

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 deg., pulse 112; his eyes were injected and his face suffused; at 3 P.M. temperature was 103.4 deg., pulse 104; 6 P.M., temperature 103.8 deg. 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 deg. 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. Muensterberg. 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. Muensterberg, 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.]

THE END