VOLUME IX SLICE III Electrostatics to Engis (continued 11)

If, as has been suggested, Charlemagne did not enter into any fundamentally new relations with his subjects after his coronation, it follows that the results of his coronation, in the sphere of policy and administration, cannot Character of the Carolingian empire. have been considerable. The Empire added a new sanction to a policy and administration already developed. Charlemagne had already showed himself episcopus episcoporum, anxious not only to suppress heresy and supervise the clergy within his borders, but also to extend true Christianity without them even before the year when his imperial coronation gave him a new title to supreme governorship in all cases ecclesiastical. He had already organized his empire on a new uniform system of counties, and the missi dominici were already at work to superintend the action of the counts, even before the renovatio imperii Romani came to suggest such uniformity and centralization. Charlemagne had a new title; but his subjects still obeyed the king of the Franks, and lived by Frankish law, in the old fashion. In their eyes, and in the eyes of Charlemagne’s own descendants, the Empire was something appendant to the kingship of the Franks, which made that kingship unique among others, but did not radically alter its character. True, the kingship might be divided among brothers by the old Germanic custom of partition, while the Empire must inhere in one person; but that was the one difference, and the one difficulty, which might easily be solved by attaching the name of emperor to the eldest brother. Such was the conception of the Carolings: such was not, however, the conception of the Church. To the popes the Empire was a solemn office, to which the kings of the Franks might most naturally be called, in view of their power and the traditions of their house, but which by no means remained in their hands as a personal property. By thus seeking to dissociate the Empire from any indissoluble connexion with the Carolingian house, the popes were able to save it. Civil wars raged among the descendants of Charlemagne: partitions recurred: the Empire was finally dissolved, in the sense that the old realm of Charlemagne fell asunder, in 888. Break-up of the Carolingian empire. But the Empire, as an office, did not perish. During the 9th century the popes had insisted, as each emperor died, that the new emperor needed coronation at their hands; and they had thus kept alive the conception of the Empire as an office to which they invited, if they did not appoint, each successive emperor. The quarrels of the Carolingian house helped them to make good their claim. John VIII. was able to select Charles the Bald in preference to other claimants in 875; and before the end of his Attitude of the papacy. pontificate he could write that “he who is to be ordained by us to the Empire must be by us first and foremost invited and elected.” Thus was the unity of the Empire preserved, and the conception of a united Empire continued, in spite of the eventual dissolution of the realm of Charlemagne. When the Carolingian emperors disappeared, Benedict IV. could crown Louis of Provence (901) and John X. could invite to the vacant throne an Italian potentate like Berengar of Friuli (915); and even when Berengar died in 924, and the Empire was vacant of an emperor, they could hold, and hold with truth, that the Empire was not dead, but only suspended, until such time as they should invite a new ruler to assume the office.

Various causes had contributed to the dissolution of the realm of Charlemagne. Partitions had split it; feudalism had begun to honeycomb it; incessant wars had destroyed its core, the fighting Franks of Austrasia. But, above all, the rise of divisions within the realm, which, whether animated by the spirit of nationality or no, were ultimately destined to develop into nations, had silently undermined the structure of Pippin and Charlemagne. Already in 842 the oath of Strassburg shows us one Caroling king swearing in French and another in German: already in 870 the partition of Mersen shows us the kings of France and Germany dividing the middle kingdom which lay between the two countries by the linguistic frontier of the Meuse and Moselle. The year 888 is the birth-year of modern Europe. France, Germany, Italy, stood distinct as three separate units, with Burgundy and Lorraine as debatable lands, as they were destined to remain for centuries to come. If the conception of Empire was still to survive, the pope must ultimately invite the The German kingdom and the empire. ruler of the strongest of these three units to assume the imperial crown; and this was what happened when in 962 Pope John XII. invited Otto I. of Germany to renew once more the Roman Empire. As the imperial strength of the whole Frankish tribe had given them the Empire in 800, so did the national strength of the East Frankish kingdom, now resting indeed on a Saxon rather than a Frankish basis, bring the Empire to its ruler in 962. The centre of political gravity had already been shifting to the east of the Rhine in the course of the 9th century. While the Northmen had carried their arms along the rivers and into the heart of France, Louis the German had consolidated his kingdom in a long reign of sixty years (817-876); and at the end of the 9th century two kings of Germany had already worn the imperial crown. Early in the 10th century the kingship of Germany had come to the vigorous Saxon dukes (919); and strong in their Saxon basis Henry I. and his son Otto had built a realm which, disunited as it was, was far more compact than that which the Carolings of the West ruled from Laon. Henry I. had thought in his later years of going to Rome for the imperial crown: under Otto I. the imperial idea becomes manifest. On the one hand, he established a semi-imperial position in the West: by 946 Louis IV. d’Outremer is his protégé, and it is his arms which maintain the young Conrad of Burgundy on his throne. On the other hand, he showed, by his policy towards the German Church, that he was the true heir of the Carolingian traditions. He made churchmen his ministers; he established missionary bishoprics on the Elbe which should spread Christianity among the Wends; and his dearest project was a new archbishopric of Magdeburg. The one thing needful was that he should, like Charlemagne, acquire the throne of Italy; and the dissolute condition of that country during the first half of the The Holy Roman Empire. 10th century made its acquisition not only possible, but almost imperative. Begun in 952, the acquisition was completed ten years later; and all the conditions were now present for Otto’s assumption of the imperial throne. He was crowned by John XII. on Candlemas Day 962, and thus was begun the Holy Roman Empire, which lasted henceforth with a continuous life until 1806.8

The same ideas underlay the new empire which had underlain that of Charlemagne, strengthened and reinforced by the fact that they had already found a visible expression before in that earlier empire. Historically, there was the tradition of the old Roman empire, preserved by the Church as an idea, and preserved in the Church, and its imperial organization, as an actual fact. Ecclesiastically, there was the Pauline conception of a single Christian Church, one in subjection to Christ as its Head, and needing (so men still thought) a secular counterpart of its indivisible unity.9 To these two sanctions philosophy later added a third; and the doctrine of Realism, that the one universal is the true abiding substance—the doctrine which pervades the De monarchia of Dante,—reinforced the feeling which demanded that Europe should be conceived as a single political unity. But if the Holy Roman empire of the German nation has the old foundations, it is none the less a thing sui generis. Externally, it meant far less than the empire of Charlemagne; it meant simply a union of Germany and northern Italy (to which, after 1032, one must also add Burgundy, though the addition is in reality nominal) under a single rule. Historians of the 19th century, during the years in which the modern German empire was in travail, disputed sorely on the advantages of this union; but whatever its advantages or disadvantages, the fact remains that the union of Teutonic Germany and Latin Italy was, from an external point of view, the essential fact in the structure of the medieval Empire. Internally, again, the Empire of the Ottos and their successors was new and unprecedented. If Latin imperialism had been combined with Frankish tribalism The Empire and feudalism. in the Empire of Charlemagne, it now met and blended with feudalism. The Holy Roman emperor of the middle ages, as Frederick I. proudly told the Roman envoys, found his senate in the diet of the German baronage, his equites in the ranks of the German knights. Feudalism, indeed, came in time to invade the very conception of Empire itself. The emperors began to believe that their position of emperor made them feudal overlords of other kings and princes; and they came to be regarded as the topmost summit of the feudal pyramid, from whom kings held their kingdoms, while they themselves held directly of God. In this way the old conception of the world as a single political society entered upon a new phase: but the translation of that conception into feudal terms, which might have made Diocletian gasp, only gave it the greater hold on the feudal society of the middle ages. Yet in one way the feudal conception was a source of weakness to the Empire; for the popes, from the middle of the 12th century onwards, began to claim for themselves a feudal overlordship of the world, and to regard the emperor as the chief of their vassals. The theory of the Translatio buttressed their claim to be overlords of the Empire; and the emperors found that their very duty to defend the Papacy turned them into its vassals—for was not the advocatus who defended the lands of an abbey or church its tenant by feudal service, and might not analogy extend the feudal relation to the imperial advocate himself?

The relation of the Empire to the Papacy is indeed the cardinal fact in its history for the three centuries which followed the coronation of Otto I. (962-1250). For a century (962-1076) the relation was one of amity. The pope The Empire and the Papacy. and the emperor stood as co-ordinate sovereigns, ruling together the commonwealth of Europe.10 If either stood before the other, the emperor stood before the pope. The Romans had sworn to Otto I. that they would never elect or ordain a pope without his consent; and the rights over papal elections conceived to belong to the office of patricius, which they generally held, enabled the emperors, upon occasion, to nominate the pope of their choice. The partnership of Otto III., son of a Byzantine princess, and his nominee Silvester II. (already distinguished as Gerbert, scholasticus of the chapter school of Reims) forms a remarkable page in the annals of Empire and Papacy. Otto, once the pupil of Silvester in classical studies, and taught by his mother the traditions of the Byzantine empire, dreamed of renewing the Empire of Constantine, with Rome itself for its centre; and this antiquarian idealism (which Arnold of Brescia and Cola di Rienzi were afterwards, though with some difference of aim, to share) was encouraged in his pupil by the pope. Tradition afterwards ascribed to the two the first project of a crusade, and the institution of the seven electors: in truth their faces were turned to the past rather than to the future, and they sought not to create, but to renovate. The dream of restoring the age of Constantine passed with the premature death of Otto; and after the death of Silvester II. the papacy was degraded into an appendage of the Tusculan family. From that degradation the Church was rescued by Henry III. (the second emperor of the new Salian house, which reigned from 1024 to 1125), when in 1046 he caused the deposition of three competing popes, and afterwards filled the papal chair with his own nominees; but it was rescued more effectually by itself, when in 1059 the celebrated bull In nomine Domini of Nicholas II. reserved the right of electing the popes to the college of cardinals (see Conclave). A new era of the Papacy begins with the decree, and that era found its exponent in Hildebrand. If under Henry III. the Empire stands in many respects at its zenith, and the emperor nominates to the Papacy, it sinks, under Henry IV., almost to the nadir of its fortunes, and a pope attempts, with no little success, to fight and defeat an emperor.

The rise of the Papacy, which the action of Henry III. in 1046 had helped to begin, and the bull of 1059 had greatly promoted, was ultimately due to an ecclesiastical revival, which goes by the name of the Cluniac movement. The aim The Investiture contest. of that movement was to separate the Church from the world, and thus to make it independent of the laity and the lay power; and it sought to realize its aim first by the prohibition of clerical marriage and simony, and ultimately by the prohibition of lay investiture. A decree of Gregory VII. in 1075 forbade emperor, king or prince to “presume to give investiture of bishoprics,” under pain of excommunication; and Henry IV., contravening the decree, fell under the penalty, and the War of Investitures began (1076-1122). Whether or no Henry humiliated himself at Canossa (and the opinion of German historians now inclines to regard the traditional account as exaggerated) the Empire certainly suffered in his reign a great loss of prestige. The emperor lost his hold over Germany, where the aid of the pope strengthened the hands of the discontented nobility: he lost his hold over Italy, where the Lombard towns gradually acquired municipal independence, and the donation of the Countess Matilda gave the popes the germ of a new and stronger dominium temporale. The First Crusade came, and the emperor, its natural leader, could not lead it; while the centre of learning and civilization, in the course of the fifty years’ War of Investitures, gradually shifted to France. The struggle was finally ended by a compromise—the Concordat of Worms—in 1122; but the Papacy, which had fought the long War of Investitures and inspired the First Crusade, was a far greater power than it had been at the beginning of the struggle, and the emperor, shaken in his hold on Germany and Italy, had lost both power and prestige (see Investiture). It is significant that a theory of the feudal subjection of the emperor to the pope, foreshadowed in the pontificate of Innocent II., and definitely enounced by the envoys of Adrian IV. at the diet of Besançon in 1157, now begins to arise. The popes, who had called the emperors to be heads of the European commonwealth in 800 and again in 962, begin to vindicate that headship for themselves. Gregory VII. had already claimed that the pope stood to the emperor, as the sun to the moon; and gradually the old co-ordination disappeared in a new subordination of the Empire to the papal plenitudo potestatis. The claim of ecclesiastical independence of the middle of the 11th century was rapidly becoming a claim of ecclesiastical supremacy in the middle of the 12th: the imperial claim to nominate popes, which had lasted till 1059, was turning into the papal claim to nominate emperors. Yet at this very time a new period of splendour dawned for the Empire; and the rule of the three Hohenstaufen emperors, Frederick I., Henry VI. and Frederick II. (1152-1250), marks the period of its history which attracts most sympathy and admiration.

Frederick I. regained a new strength in Germany, partly because he united in his veins the blood of the two great contending families, the Welfs and the Waiblingens; partly because he had acquired large patrimonial possessions The Hohenstaufen emperors. in Swabia, which took the place of the last Saxon demesne; partly because he had a greater control over the German episcopate than his predecessors had enjoyed for many years past. At the same time the revival of interest in the study of Roman law gave the emperor, as source and centre of that law, a new dignity and prestige, particularly in Italy, the home and hearth of the revival. Confident in this new strength, he attempted to vindicate his claims on Italy, and sought, by uniting the two under his sway, to inspire with new life the old Ottonian Empire. He failed to crush Lombard municipal independence: defeated at Legnano in 1176, he had to recognize his defeat at the treaty of Constance in 1183. He failed to acquire control over the Papacy: a new struggle of Empire and Papacy, begun in the pontificate of Adrian IV. on the question of control over Rome, and continued in the pontificate of Alexander III., because Frederick recognized an anti-pope, ended in the emperor’s recognition of his defeat at Venice in 1177. The one success was the acquisition of the Norman kingdom for Henry VI., who was married to its heiress, Constance. But the one success of Frederick’s Italian policy proved the ruin of his house in the reign of his grandson Frederick II. On the one hand, the possession of Sicily induced Frederick II. to neglect Germany; and by two documents, one of 1220 and one of 1231, he practically abdicated his sovereign powers to the German princes in order to conciliate their support for his Italian policy. On the other hand, the possession of Sicily involved him in the third great struggle of Empire and Papacy. Strong in his Sicilian kingdom in the south, and seeking, like his grandfather, to establish his power in Lombardy, Frederick practically aimed at the unification of Italy, a policy which threatened to engulf the States of the Church and to reduce the Papacy to impotence. The popes excommunicated the emperor: they aided the Lombard towns to maintain their independence; finally, after Frederick’s death (1250), they summoned Charles of Anjou into Overthrow of the Empire in Italy. Sicily to exterminate his house. By 1268 he had done his work, and the medieval Empire was practically at an end. When Rudolph of Habsburg succeeded in 1273, he was only the head of a federation of princes in Germany, while in Italy he abandoned all claims over the centre and south, and only retained titular rights in the Lombard plain.

Thus ended the first great chapter in the history of the Holy Roman Empire which Otto had founded in 962. In those three centuries the great fact had been its relation to the Papacy: in the last two of those three centuries the relation had been one of enmity. The basis of the enmity had been the papal claim to supreme headship of Latin Christianity, and to an independent temporal demesne in Italy as the condition of that headship. Because they desired supreme headship, the popes had sought to reduce the emperor’s headship to something lower than, and dependent upon, their own—to a mere fief held of St Peter: because they desired a temporal demesne, they had sought to expel him from Italy, since any imperial hold on Italy threatened their independence. They had succeeded in defeating the Empire, but they had also destroyed the Papacy; for the French aid which they had invoked against the Hohenstaufen developed, within fifty years of the fall of that house, into French control, and the captivity at Avignon (1308-1378) was the logical result of the final victory of Charles of Anjou at Tagliacozzo. The struggle seemed to have ended in nothing but the exhaustion of both combatants. Yet in many respects it had in reality made for progress. It had set men thinking of the respective limits of church and state, as the many libelli de lite imperatorum et pontificum show; and from that thought had issued a new conception of the state, as existing in its own right and supreme in its own sphere, a conception which is the necessary basis of the modern nation-state. If it had dislocated Germany into a number of territorial principalities, it had produced a college of electors to represent the cause of unity: if it had helped to prevent the unification of Italy, and had left to Italy the fatal legacy of Guelph and Ghibelline feuds, it had equally helped to produce Italian municipal independence.

A new chapter of the history of the Empire fills the three centuries from 1273 to 1556—from the accession of Rudolph of Habsburg to the abdication of Charles V. Italy was now lost: the Empire had now no peculiar connexion The Empire from the election of Rudolph of Habsburg, 1273. with Rome, and far less touch with the Papacy. A new Germany had risen. The extinction of several royal stocks and the nomination of anti-kings in the course of civil wars had made the monarchy elective, and raised to the side of the emperor a college of electors (see Electors), which appears as definitely established soon after 1250. With Italy lost, and Germany thus transmuted, why should the Empire have still continued to exist? In the first place, it continued to exist because the Germans still found a king necessary and because, the German king having been called for three centuries emperor, it seemed necessary that he should still continue to bear the name. In this sense the Empire existed as the presidency of a Germanic confederation, and as something analogous to the modern German empire, with the one great difference that the Hohenzollerns now derive from Prussia a strength which enables them to make their imperial position a reality, while no Luxemburg or Habsburg was able to make his imperial position otherwise than honorary and nominal. In the second place, it continued to exist because the conception of the unity of western Europe still lingered, and was still conceived to need an exponent. In this sense the Empire existed as a presidency, still more honorary and still more nominal, of the nations of western Europe. In both capacities the emperor existed to a great extent because he was a legal necessity—because, in Germany, he was necessary for the investiture of princes with their principalities, and because, in Europe, he was necessary, as the source of all rights, to bestow crowns upon would-be kings, or to act as the head of the great orders of chivalry, or to give patents to notaries. With the history of the Empire regarded as a German confederation we are not here concerned. The reigns of the Habsburg, Luxemburg and Wittelsbach emperors belong to the history of Germany. Yet two of these emperors, Henry VII. and Louis IV., should not pass without notice, the one for his own sake, the other for the sake of his adherents, and both because, by interfering in Italy, and coming into conflict with the Papacy, they brought once more into prominence the European aspect of the Empire.

Henry VII., the contemporary and the hero of Dante, descended into Italy in 1310, partly because he had no power and no occupation in Germany, partly because he was deeply imbued with the sense of his imperial dignity. Coming as a peacemaker and mediator, he was driven by Guelph opposition into a Ghibelline rôle; and he came into conflict with Clement V., the first of the Avignonese popes, who under the pressure of France attempted to enforce upon Henry a recognition of his feudal subjection. Henry asserted his independence: he claimed Rome for his capital, and the lordship of the world for his right; but, just as a struggle seemed impending, he died, in 1313. During the reign of his successor, Louis IV., the struggle came. Louis had been excommunicated by John XXII. in 1324 for acting as emperor before he had received papal recognition. None the less, in 1328, he came to Rome for his coronation. He had gathered round him strange allies; on the one hand, the more advanced Franciscans, apostles of the cause of clerical disendowment, and inimical to a wealthy papacy; on the other hand, jurists like Marsilius of Padua and John of Jandun, who brought to the cause of Louis the spirit and the doctrines which had already been used in the struggle between Boniface VIII. and Philip IV. of France. Marsilius in particular, in a treatise called the Defensor Pacis, insisted on the majesty of the lay state, and even on its superiority to the Church. Perhaps it was Marsilius, learned as he was in Roman law, and remembering the lex regia by which the Roman people had of old conferred its power on the emperor, who suggested to Louis the policy, which he followed, of receiving the imperial crown by the decree and at the hands of the Roman people. The policy was remarkable: Louis embraced an alliance which Frederick Barbarossa had spurned, and recognized the medieval Romans as the source of imperial power. Not less remarkable was the new attitude of the German electors, who for the first time supported an emperor against the pope, because they now felt menaced in their own electoral rights; and the one permanent result which finally flowed from the struggle was the enunciation and definition of the rights and privileges of the electors in the Golden Bull of 1356 (see Golden Bull).

In this struggle with the Papacy the Empire had shown something of its old universal aspect. It had come into connexion with Italy, and into close connexion with Rome: it had enlisted in defence of its rights at once an Italian like Marsilius and an Englishman like Ockham. The same universal aspect appeared once more in the age of the conciliar movement, at the beginning of the 15th century. One of the essential duties of the emperor, as defender of the Church, was to help the assembling and the deliberations of general councils of the Church. This was the duty discharged by Sigismund, when he forced John XXIII. to summon a council at Constance in 1414, and sought, though in vain, to guide its deliberations. The journey which Sigismund undertook in the interests of the council (1415-1417) is particularly noteworthy. He sought to make peace throughout western Europe, acting as international arbitrator—in virtue of his presidency of western Europe—between England and France, between Burgundians and Armagnacs; but he failed in his aim, and when he returned to the council, it was only to witness the defeat of the party of reform which he championed. National The Empire and the rise of the idea of national states. feeling and national antipathies proved too strong for Sigismund’s attempt to revive the medieval empire for the purposes of international arbitration: the same feeling, the same antipathies, made inevitable the failure of the council itself, in which western Europe had sought to meet once more as a single religious commonwealth. Early in the 15th century, therefore, the conception of the unity of western Europe, as a single Empire-Church, was already waning in both its aspects. The unity of the Church Universal was dissolving, and the conception of the nation-church arising (as the separate concordats granted by Martin V. to the different nations prove); while the unity of the Empire was proved a dream, by the powerlessness of the emperor in the face of the struggle of England and France.

Renaissance and Reformation combined to complete the fall which the failure of Sigismund to guide the conciliar movement had already foreshadowed. The Renaissance, revolting against the medievalism of the studium and not Influence of the Reformation. sparing even the sacerdotium of the middle ages, had little respect for the medieval imperium; and, going back to pure Latin and original Greek, it went back beyond even the classical empire to find its ideals and inspirations. But it is the coming of the Reformation, and with it of the nation-church, which finally marks the epoch at which the last vestige of the old conception of the political unity of the world disappears before the nation-state. Externally indeed it seemed, at the time of the Reformation, as if the old Empire had been revived in the person of Charles V., who owned territories as vast as those of Charlemagne. But Charles’s dominions were a dynastic agglomeration, knit together by no vivifying conception; and, though Charles was a champion of the one Catholic Church against the Reformation, he did not in any way seek to revive the power of the medieval empire. Meanwhile the reforming monarchs, while they cast off the Roman Church, cast off with it the Roman empire. Henry VIII. declared himself free, not only of the pope, but of all other foreign power; not only so, but as he sought to take the place of the pope with regard to his own church, so he sought to take the place of the emperor with regard to his kingdom, and spoke of his “imperial” crown, a style which recurs in later Tudor reigns.11 The conception of one Empire passed out of Europe, or, if it remained, it remained only in an honorary precedence accorded by other sovereigns to the king of Germany, who still entitled himself emperor. In Germany itself the honorary presidency which the emperor enjoyed over the princes came to mean still less than before, when religious differences divided the country, and the principle of cujus regio ejus religio accentuated the local autonomy of the prince. When Charles abdicated in 1556, the change which the accession of Rudolph of Habsburg had already marked was complete: there was no empire except in Germany, and in Germany the Empire was nothing more than a convenient legal conception. The Reformation, by sweeping away the spiritual unity of western Christendom, had swept away any real conception of its political unity, and with that conception it had swept away the Empire; while it had also, by splitting Germany into two religious camps, and making the emperor at the most the head of a religious faction, dissipated the last vestiges of a real Empire in the country which had, since 962, been its peculiar home.

From 1556 to 1806 the Empire means a loose federation of the different princes of Germany, lay and ecclesiastical, under the presidency, elective in theory but hereditary in practice, of the house of Habsburg. It is an empire The Empire as a German confederation. much in the same sense as the modern German empire, with a diet somewhat analogous to the modern Bundesrat, and a cumbrous imperial chamber for purposes of justice, hardly at all analogous to the highly organized system of federal justice which prevails in Germany to-day. The dissolution of the Holy Roman Empire into this loose federation had already been anticipated by the concessions made to the princes by Frederick II. in 1220 and 1231; but the final organization of Germany on federal lines was only attained in the treaty of Westphalia of 1648. The attempt of Ferdinand II., in the course of the Thirty Years’ War, to assert a practically monarchical authority over the princes of Germany, only led to the regular vindication by the princes of their own monarchical authority. The emperor, who had tried in the 15th century to be the international authority of all Europe, now sank to the position of less than inter-state arbitrator in Germany. That the Empire and the emperor were retained at all, when the princes became so many independent sovereigns, was due partly to a lingering sense of quasi-national sentiment for a magni nominis umbra, partly to the need of some authority which should combine in one whole principalities of very different sizes and strengths, and should protect the weak from the strong, and all from France. But this authority only found its symbol in the emperor. Such real federal authority as there was remained with the diet, a congress of sovereign princes through their accredited representatives; and the emperor’s sole rights, as emperor, were those of granting titles and confirming tolls. The Habsburgs, emperors in each successive generation, never pursued an imperial, but always a dynastic policy; and they were perfectly ready to sacrifice to the aggrandizement of their house the honour of the Empire, as when they ceded Lorraine to France in return for Tuscany (1735).

It needed the cataclysm of the French Revolution finally to overthrow the Empire. Throughout the 18th century it lasted, a thing of long-winded protocols and never-ending lawsuits, “neither Holy, nor Roman, nor an Empire.” End of the Holy Roman Empire. But with Napoleon came its destroyer. As far back as the end of the 13th century, French kings had been scheming to annex the title or at any rate absorb the territories of the Empire: at the beginning of the 19th century the annexation of the title by Napoleon seemed very imminent. Posing as the New Charlemagne (“because, like Charlemagne, I unite the crown of France to that of the Lombards, and my Empire marches with the East”), he resolved in 1806, during the dissolution and recomposition of Germany which followed the peace of Lunéville, to oust Francis II. from his title, and to make the Holy Roman Empire part and parcel of the “Napoleonic idea.” He was anticipated, however, by the prompt action of the proud Habsburg, who was equally resolved that no other should wear the crown which he himself was powerless to defend, and accordingly, on the 6th of August 1806, Francis resigned the imperial dignity. So perished the Empire. Out of its ashes sprang the Austrian Empire, for Francis, in 1804, partly to counter Napoleon’s assumption of the title of Emperor of the French, partly to prepare for the impending dissolution of the old Empire, had assumed the title of “Hereditary Emperor of Austria.” And in yet more recent times the German empire may be regarded, in a still more real sense than Austria, as the descendant and representative of the old Empire of the German nation.

What had been the results of the Holy Roman Empire, in the course of its long history, upon Germany and upon Europe? It has been a vexata quaestio among German historians, whether or no the Empire ruined Germany. Some General influence of the Empire. have argued that it diverted the attention of the German kings from their own country to Italy, and that, by bringing them into conflict with the popes, and by thus strengthening the hands of their rebellious baronage with a papal alliance, it prevented the development of a national German monarchy, such as other sovereigns of western Europe were able to found. Others again have emphasized the racial division of Saxon and Frank, of High German and Low German, as the great cause of the failure of Germany to grow into a united national whole, and have sought to ascribe to the influence of the Empire such unity as was achieved; while they have attributed the learning, the trade, the pre-eminence of medieval Germany to the Italian connexion and the prestige which the Empire brought. It is difficult to pronounce on either side; but one feels that the old localism and individualism which characterized the early German, and had never, on German soil, been combined with and counteracted by a large measure of Roman population and Roman civilization, as they were in Gaul and Spain, would in any case have continued to divide and disturb Germany till late in her history, even if the Empire had never come to reside within her borders. Of the larger question of the influence of the Empire on Europe we can here only say that it worked for good. An Empire which represented, as a Holy Empire, the unity of all the faithful as one body in their secular, no less than in their religious life—an Empire which, again, as a Roman Empire, represented with an unbroken continuity the order of Roman administration and law—such an empire could not but make for the betterment of the world. It was not an empire resting on force, a military empire; it was not, as in modern times empires have sometimes been, an autocracy warranted and stamped by the plébiscite of the mob. It was an empire resting neither on the sword nor on the ballot-box, but on two great ideas, taught by the clergy and received by the laity, that all believers in Christ form one body politic, and that the one model and type for the organization of that body is to be found in the past of Rome. It was indeed the weakness of the Empire that its roots were only the thoughts of men; for the lack of material force, from which it always suffered, hindered it from doing work it might well have done—the work, for instance, of international arbitration. Yet, on the other hand, it was the strength and glory of the Empire that it lived, all through the middle ages, an unconquerable idea of the mind of man. Because it was a being of their thought, it stirred men to reflection: the Empire, particularly in its clash with the Papacy, produced a political consciousness and a political speculation reflected for us in the many libelli de lite imperatorum et pontificum, and in the pages of Dante and Marsilius of Padua. Roman, it perpetuated the greatest monument of Roman thought—that ordered scheme of law, which either became, as in England, the model for the building of a native system, or, as in Germany from the end of the 15th century onwards, was received in its integrity and administered in the courts. Holy, it fortified and consolidated Christian thought, by giving a visible expression to the kingdom of God upon earth; and not only so, but it maintained, however imperfectly, some idea of international obligation, and some conception of a commonwealth of Europe.12

The Holy Roman Empire of western Europe had in its own day a contemporary and a rival—that east Roman empire of which we have already spoken. From Arcadius to John Palaeologus, from A.D. 395 to 1453, the Roman empire was continued at Constantinople—not as a theory and an idea, but as a simple and daily reality of politics and administration. In one sense the East Roman Empire was more lineally and really Roman than the West: it was absolutely continuous from ancient times. In another sense the Western Empire was the most Roman; for its capital—in theory at least—was Rome itself, and the Roman Church stood by its side, while Constantinople was Hellenic and even Oriental. Between the two Empires there was fixed an impassable gulf; and they were divided by deep differences of thought and temper, which appeared most particularly in the sphere of religion, and expressed themselves in the cleavage between the Catholic and the Orthodox Churches. Yet, as when Rome fell, the Catholic Church survived, and ultimately found for itself a new Empire of the West, so, when Constantinople fell, the Orthodox Church continued its life, and found for itself a new Empire of the East—the Empire of Russia. Under Ivan the Great (1462-1505) Moscow became the metropolis of Orthodoxy; Byzantine law influenced his code; and he took for his cognizance the double-headed eagle. Ivan the Terrible, his grandson, finally assumed in 1547 the title of Tsar; and henceforth the Russian emperor is, in theory and very largely in fact, the successor of the old East Roman emperor,13 the head of the Orthodox Church, with the mission of vengeance on Islam for the fall of Constantinople.

In the 19th century the word “empire” has had a large and important bearing in politics. In France it has been the apanage of the Bonapartes, and has meant a centralized system of government by an efficient Caesar, resting immediately Modern Empires. on the people, and annihilating the powers of the people’s representatives. Under Napoleon I. this conception had a Carolingian colour: under Napoleon III. there is less of Carolingianism, and more of Caesarism—more of a popular dictatorship. While in modern France Empire has meant autocracy instead of representative government, in Germany it has meant a greater national unity and a federal government in the place of a confederation. The modern German empire is at once like and unlike the old Holy Roman Empire. It is unlike the old medieval Empire; for it has no connexion with the Catholic Church, and no relation to Rome. But it is like the Holy Roman Empire of the 17th and 18th centuries—for it represents a federation, but a more real and more unitary federation, of the several states of Germany. The likeness is perhaps more striking than the dissimilarity; and in virtue of this likeness, and because the memory of the old German Kaiserzeit was a driving force in 1870, we may speak of the modern German empire as the successor of the old Holy Roman Empire, if we remember that we are speaking of that Empire in its last two centuries of existence. The modern “Empire of Austria,” on the other hand, does not connote an empire in the sense of a federation, but is a convenient designation for the sum of the territories ruled by a single sovereign under various titles (king of Bohemia, archduke of Austria, &c.) and unified in a single political system.14 The title of Emperor was assumed, as we have seen, through an historical accident; and, though the Habsburgs of to-day are personally the lineal descendants of the old Holy Roman emperors, they do not in any way possess an empire that represents the old Holy Empire. In England, of recent years, the term “Empire” and the conception of imperialism have become prominent and crucial. To Englishmen to-day, as to Germans before 1870, the term and the conception stand for the greater unity and definitely federal government of a number of separate states. For the German, indeed, Empire has meant, in great measure, the strengthening of a loose federal institution by the addition of a common personal superior: to us it means the turning of a loose union of separate states already under a common personal superior—the King—into a federal commonwealth living under some common federal institutions. But the aim is much the same; it is the integration of a people under a single scheme which shall be consistent with a large measure of political autonomy. We speak of imperial federation; and indeed our modern imperialism is closely allied to federalism. Yet we do well to cling to the term empire rather than federation; for the one term emphasizes the whole and its unity, the other the part and its independence. This imperialism, which is federalism viewed as making for a single whole, is very different from that Bonapartist imperialism, which means autocracy; for its essence is free co-ordination, and the self-government of each co-ordinated part. The British Empire (q.v.) is, in a sense, an aspiration rather than a reality, a thought rather than a fact; but, just for that reason, it is like the old Empire of which we have spoken; and though it be neither Roman nor Holy, yet it has, like its prototype, one law, if not the law of Rome—one faith, if not in matters of religion, at any rate in the field of political and social ideals.

Authorities.—See, in the first place, J. Bryce, Holy Roman Empire (1904 edition); J. von Döllinger, article on “The Empire of Charles the Great” (in Essays on Historical and Literary Subjects, translated by Margaret Warre, 1894); H. Fisher, The Medieval Empire (1898); E. Gibbon, The Decline and Fall of the Roman Empire, edited by J.B. Bury. It would be impossible to refer to all the books bearing on the article, but one may select (i.) for the period down to 476, Stuart Jones, The Roman Empire (1908), an excellent brief sketch; H. Schiller, Geschichte der römischen Kaiserzeit (1883-1888); O. Seeck, Geschichte des Untergangs der antiken Welt (Band I., Berlin, 1897-1898, Band II., 1901) (a remarkable and stimulating book); and the two excellent articles on “Imperium” and “Princeps” in Smith’s Dictionary of Greek and Roman Antiquities (1890); (ii.) for the period from 476 down to 888, T. Hodgkin, Italy and her Invaders (1880-1900); F. Gregorovius, Geschichte der Stadt Rom im Mittelalter (1886-1894; Eng. trans., London, 1894-1900); E. Lavisse, Histoire de France, II. i. (1901); J.B. Bury, History of the Later Roman Empire (1889); (iii.) for the Holy Roman Empire of the German nation, W. von Giesebrecht, Geschichte der deutschen Kaiserzeit (1881-1890); J. Zeller, Histoire d’Allemagne (1872-1891); R.L. Poole, Illustrations of Medieval Thought (1884); S. Riezler, Die literarischen Widersacher der Päpste zur Zeit Ludwigs des Baiers (1874); J. Jannsen, Geschichte des deutschen Volkes seit dem Ausgang des Mittelalters (1885-1894); L. von Ranke, Deutsche Geschichte im Zeitalter der Reformation (1839-1847), and Zur deutschen Geschichte. Vom Religionsfrieden bis zum dreissigjährigen Krieg (1869); and T. Carlyle, Frederick the Great (1872-1873). On the fall of the Roman Empire and the transition to the modern German Empire see Sir J.R. Seeley, Life and Times of Stein (1878); H. von Treitschke, Deutsche Geschichte (1879-1894); and H. von Sybel, Die Begründung des deutschen Reichs (1890-1894, Eng. trans., The Founding of the Germ. Emp., New York, 1890-1891). For institutional history, see R. Schröder, Lehrbuch der deutschen Rechtsgeschichte (1894). On the influence of the Holy Roman Empire upon the history of Germany, see J. Ficker, Das deutsche Kaiserreich (1861), and Deutsches Königtum und Kaisertum (1862); and H. von Sybel, Die deutsche Nation und das Kaiserreich (1861).

(E. Br.)

1 Bryce points out, with much subtlety and truth, that the rise of a second Rome in the East not only helped to perpetuate the Empire by providing a new centre which would take the place of Rome when Rome fell, but also tended to make it more universal; “for, having lost its local centre, it subsisted no longer by historic right only, but, so to speak, naturally, as a part of an order of things which a change in external conditions seemed incapable of disturbing” (Holy Roman Empire, p. 8 of the edition of 1904).

2 The de facto importance of the event of 476 can only be seen in the light of later events, and it was not therefore noticed by contemporaries. Marcellinus is the only contemporary who remarks on its importance, cf. Marcellini Chronicon (Mon. Germ. Hist., Chronica minora. ii. 91), Hesperium Romanae gentis imperium ... cum hoc Augustulo periit ... Gothorum dehinc regibus Romam tenentibus.

3 A passage in Malchus, a Byzantine historian (quoted by Bryce, Holy Roman Empire, p. 25, note u, in the edition of 1904), expresses this truth exactly. The envoys sent to Zeno by Odoacer urge ὡς ἰδίας μὲν αὐτοῖς βασιλείας οὐ δέοι κοινὸς δὲ ἀποχρήσει μόνος ὤν αὐτοκράτωρ ἐπ᾽ ἀμφοτέροις τοῖς πέρασι. The envoys then suggest the name of Odoacer, as one able to manage their affairs, and ask Zeno to give him, as an officer of the Empire, the title of Patricius and the administration of Italy.

4 According to the view here followed, the Church was the ark in which the conception of Empire was saved during the dark ages between 600 and 800. Some influence should perhaps also be assigned to Roman law, which continued to be administered during these centuries, especially in the towns, and maintained the imperial tradition. But the influence of the Church is the essential fact.

5 In the 5th century the title patricius came to attach particularly to the head of the Roman army (magister utriusque militiae) to men like Aetius and Ricimer, who made and unmade emperors (cf. Mommsen, Gesammelte Schriften, iv. 537, 545 sqq.). Later it had been borne by the Greek exarchs of Ravenna. The concession to Pippin of this great title makes him military head of the Western empire, in the sense in which the title was used in the 5th century; it makes him representative of the Empire for Italy, in the sense in which it had been used of the exarchs.

6 See the famous bull Venerabilem (Corp. Jur. Canon. Decr. Greg. i. 6, c. 34).

7 Even on this view, an imperial coronation at the hands of the pope was necessary to complete the title; but this was regarded by the Germans (though not by the pope) as a form which necessarily followed.

8 It is a curious fact that imperial titles (imperator and basileus) are used in the Anglo-Saxon diplomata of the 10th century. Edred, for instance (946-955) is “imperator,” “cyning and casere totius Britanniae,” “basileus Anglorum hujusque insulae barbarorum”: Edgar is “totius Albionis imperator Augustus” (cf. Stubbs, Const. Hist. i. c. vii. § 71). These titles partly show the turgidity of English Latinity in the 10th century, partly indicate the quasi-imperial position held by the Wessex kings after the reconquest of the Dane-law. But there seems to be no real ground for Freeman’s view (Norman Conquest, i. 548 sqq.), that England was regarded as a third Empire, side by side with the other Empires of West and East Europe. That the titles were assumed in order to repudiate possible claims of the Western Empire to the overlordship of England is disproved by the fact that they are assumed at a time when there is no Western emperor. The assumption of an imperial style by Henry VIII., which is mentioned below, is explained by the Reformation, and does not mean any recurrence to a forgotten Anglo-Saxon style.

9 It is in virtue of this aspect that the Empire is holy. The term sacrum imperium seems to have been first used about the time of Frederick I., when the emperors were anxious to magnify the sanctity of their office in answer to papal opposition. The emperor himself (see under Emperor) was always regarded, and at his coronation treated, as a persona ecclesiastica.

10 The emperor claimed suzerainty over the greater part of Europe at various dates. Hungary and Poland, France and Spain, the Scandinavian peninsula, the British Isles, were all claimed for the Empire at different times (see Bryce, Holy Roman Empire, c. xii.). The “effective” empire, if indeed it may be called effective, embraced only Germany, Burgundy and the regnum Italiae (the old Lombard kingdom in the valley of the Po).

11 Cf. the Act 25 Henry VIII. c. 22, § 1: “the lawful kings and emperors of this realm.”

12 The Papacy, consistent to the last, formally protested at the Congress of Vienna in 1815 against the failure of the Powers to restore the Holy Roman Empire, the “centre of political unity” (Ed.).

13 The Turks, occupying Constantinople, have also claimed to be the heirs of the old emperors of Constantinople; and their sultans have styled themselves Keisar-i-Rûm.

14 This does not, of course, apply to Hungary, which since 1867 has not formed part of the Austrian empire and is ruled by the head of the house of Habsburg not as emperor, but as king of Hungary.

EMPIRICISM (from Gr. ἔμπειρος, skilled in, from πεἶρα, experiment), in philosophy, the theory that all knowledge is derived from sense-given data. It is opposed to all forms of intuitionalism, and holds that the mind is originally an absolute blank (tabula rasa), on which, as it were, sense-given impressions are mechanically recorded, without any action on the part of the mind. The process by which the mind is thus stored consists of an infinity of individual impressions. The frequent or invariable recurrence of similar series of events gives birth in the mind to what are wrongly called “laws”; in fact, these “laws” are merely statements of experience gathered together by association, and have no other kind of validity. In other words from the empirical standpoint the statement of such a “law” does not contain the word “must”; it merely asserts that such and such series have been invariably observed. In this theory there can strictly be no “causation”; one thing is observed to succeed another, but observations cannot assert that it is “caused” by that thing; it is post hoc, but not propter hoc. The idea of necessary connexion is a purely mental idea, an a priori conception, in which observation of empirical data takes no part; empiricism in ethics likewise does away with the idea of the absolute authority of the moral law as conceived by the intuitionalists. The moral law is merely a collection of rules of conduct based on an infinite number of special cases in which the convenience of society or its rulers has subordinated the inclination of individuals. The fundamental objection to empiricism is that it fails to give an accurate explanation of experience; individual impressions as such are momentary, and their connexion into a body of coherent knowledge presupposes mental action distinct from mere receptivity. Empiricism was characteristic of all early speculation in Greece. During the middle ages the empiric spirit was in abeyance, but it revived from the time of Francis Bacon and was systematized especially in the English philosophers, Locke, Hume, the two Mills, Bentham and the associationist school generally.

See Association of Ideas; Metaphysics; Psychology; Logic; besides the biographies of the empirical philosophers.

In medicine, the term is applied to a school of physicians who, in the time of Celsus and Galen, advocated accurate observation of the phenomena of health and disease in the belief that only by the collection of a vast mass of instances would a true science of medicine be attained. This point of view was carried to extremes by those who discarded all real study, and based their treatment on rules of thumb. Hence the modern sense of empirical as applied to the guess work of an untrained quack or charlatan.

EMPLOYERS’ LIABILITY, and WORKMEN’S COMPENSATION.1 The law of England as to the liability of employers in respect of personal injuries to their servants is regulated partly by the common law and partly by statute; but by the Employers’ Liability Act 1880, such exceptions have been grafted upon the common law, and by the Workmen’s Compensation Act 1906, principles so alien to the common law have been applied to most employments that it is impossible now to present any view of this branch of the law as a logical whole. All that can be done is to state the nature of the liability at common law. the extension of it effected by the Employers’ Liability Act 1880, and the new liabilities introduced by later acts.

At common law the liability of a master is of a very limited character. There is, of course, nothing to prevent a master and servant from providing by special contract in any way they please for their mutual rights in cases of Common law. personal injury to the servant. In such cases the liability will depend upon the terms of the special contract. But apart from any special agreement, it may be broadly stated that a master is liable to his servants only for injuries caused by his own negligence. Injuries to a servant may arise from accident, from the nature of the service, or from negligence; and this negligence may be of the master, of another servant of the master, or of a stranger. If the injury is purely accidental the loss lies where it falls. If it arises from the nature of the service, the servant must bear it himself; he has undertaken a service to which certain risks are necessarily incident; if he is injured thereby, it is the fortune of war, and no one can be made responsible. If the injury is caused by the negligence of a stranger, the servant has his ordinary remedy against the wrong-doer or any one who is responsible as a principal for the conduct of the wrong-doer. If it is caused by the negligence of a fellow-servant, he likewise has his ordinary remedy against the actual wrong-doer; but, by virtue of what is known as the doctrine of common employment, he cannot at common law make the master liable as a principal. The only case (independently of modern legislation: see below) in which he can recover damages from the master is where the injury has been caused by negligence of the master himself. A master is negligent if he fails to exercise that skill and care which, in the circumstances of the particular employment, are used by employers of ordinary skill and carefulness. If he himself takes part in the work, he must act with such skill and care as may reasonably be demanded of one who takes upon himself to do work of that kind. If he entrusts the work to other servants, he must be careful in their selection, and must not negligently employ persons who are incompetent. He must take proper care so to arrange the system of work that his servants are not exposed to unnecessary danger. If tools or machinery are used, he must take proper care to provide such as are fit and proper for the work, and must either himself see that they are maintained in a fit condition or employ competent servants to do so for him. If he is bound by statute to take precautions for the safety of his servants, he must himself see that that obligation is discharged. For breach of any of these duties a master is liable to his servant who is injured thereby, but his liability extends no further.

That his obligations to a servant are so much less than to a stranger is chiefly due to the doctrine of common employment. As a rule a master is responsible for the negligence of his servant acting in the course of his employment; Common employment. but, from about the middle of the 19th century, it became firmly rooted in the law that this principle did not apply where the person injured was himself a servant of the master and engaged in a common employment with the servant guilty of the negligence. In effect this rule protects a master as against his servant from the consequences of negligence on the part of any other of his servants; to this there is no qualification except that, for the rule to apply, both the injured and the negligent servant must be acting in pursuance of a common employment. They must both be working for a common object though not necessarily upon the same work.

It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim, volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell’s Act (Fatal Accidents Act 1846).

Such was the law up to 1880. So long as industry was conducted on a small scale, and the master worked with his men, or was himself the manager, its hardship was perhaps little felt; his personal negligence could in many cases The act of 1880. be established. But with the development of the factory system, and the ever-growing expansion of the scale on which all industries were conducted, it became increasingly difficult to bring home individual responsibility to the employer. As industry passed largely into the control of corporations, difficulty became almost impossibility. The employer was not liable to a servant for the negligence of a fellow-servant, and therefore, in most cases of injury, was not liable at all. It is not surprising that the condition of things thus brought about, partly by the growth of modern industry and partly by the decisions of the courts, caused grave dissatisfaction. The justice of the doctrine of common employment was vigorously called in question. In the result the Employers’ Liability Act 1880 was passed. The effect of this act is to destroy the defence of common employment in certain specified cases. It does not abolish the doctrine altogether, nor, on the other hand, does it impose upon the master any new standard of duty which does not exist as regards strangers. All that it does is to place the servant, in certain cases, in the position of a stranger, making the master liable for the negligence of his servants notwithstanding the fact that they are in common employment with the servant injured. It is still necessary under the act, as at common law, to prove negligence, and the master may still rely upon the defences of contributory negligence and volenti non fit injuria. But under the act he cannot, as against the workmen who come within it and in the cases to which it applies, set up the defence that the negligence complained of was the negligence of a servant in a common employment. The act does not apply to all servants. It does not apply to domestic or menial servants, or to seamen, or to any except railway servants and “any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour ... has entered into or works under a contract with an employer, whether the contract be oral or in writing, and be a contract of service or a contract personally to execute any work or labour.” Whether a servant, not being one of those specially named, is within the act depends on whether manual labour is the real and substantial employment, or whether it is merely incidental thereto; thus a carman who handles the goods he carries may be within the act, but a tramcar driver or an omnibus conductor is not. The act does not make the master liable for the negligence of all his servants, but, speaking generally, only for the negligent discharge of their duties by such as are entrusted with the supervision of machinery and plant, or with superintendence, or the power of giving orders, with the addition, in the case of a railway, of the negligence of those who are given the charge or control of signals, points, locomotive engines or trains. The cases dealt with by the act are five in number; in the first and fourth the words are wide enough to include negligence of the employer himself, for which, as has been seen, he is liable at common law. In such instances the workman has an alternative remedy either at common law or under the act, but in all other respects the rights given by the act are new, being limitations upon the defence of common employment, and can be enforced only under the act.

The first case is where the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer, provided that such defect arises from, or has not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant are in proper condition. The second case is where the injury is caused by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (that is, a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour) whilst in the exercise of such superintendence. The third case is where the injury is caused by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury is bound to conform and does conform, where such injury results from his so conforming. The fourth case is where the injury is caused by reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf, provided that the injury results from some impropriety or defect in such rules, by-laws or instructions. The fifth case is where the injury is caused by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine or train upon a railway.

In all these cases it is provided that the employer shall not be liable if it can be shown that the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. It was inevitable that these provisions should call for judicial interpretation, and a considerable body of authority has grown up about the act. Where general words are used, it must always occur that, between the cases which are obviously within and those which are obviously without the words, there are many on the border line. Thus, under the act, the courts have been called upon to determine the precise meaning of “way,” “works,” “machinery,” “plant,” and to say what is precisely meant by a “defect” in the condition of each of them. They have had to say what is included in “railway” and in “train,” what is meant by having “charge” or “control,” and to what extent one whose principal duty is superintendence may participate in manual labour without losing his character of superintendent, and what is the precise meaning of negligence in superintendence. These are only illustrations of many points of detail which, having called for judicial interpretation, will be found fully dealt with in the text-books on the subject. A workman who, being within the act, is injured by such negligence of a fellow-servant as is included in one or other of the five cases mentioned above, has against his employer the remedies which the act gives him. These are not necessarily the same as those which a stranger would have in the like circumstances; the amount of compensation is not left at large for a jury to determine, but is limited to an amount not exceeding such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. Moreover, the right to recover is hedged about with technicalities which are unknown at the common law; proceedings must be taken in the county court, within a strictly limited time, and are maintainable only if certain elaborate provisions as to notice of injury have been complied with. Where the injury causes death the action is maintainable for the benefit of the like persons as are entitled under Lord Campbell’s act in an action at common law.

The law continued in this condition up to 1897. In the majority of cases of injury to a servant, the doctrine of common employment still protected the master; and where, under the Employers’ Liability Act, it failed to do so, the liability was of a limited character and often, owing to technicalities of procedure, difficult to enforce. Moreover, there is nothing in the act to prevent master and servant from entering into any special contract they please; and in many trades it became a common practice for contracts to be made wholly excluding the operation of the act. In 1893 an attempt was made to alter the law by a total abolition of the defence of common employment, so as to make a master as liable to a servant as to a stranger for the negligence of any of his servants acting in the course of their employment, and at the same time to prohibit any agreements to forego the rights so given to the servant. The bill did not become law, and no further change was made until, in 1897, parliament took the first step in what has been a complete revolution in the law of employers’ liability. Up to that year, as has been seen, the foundation of a master’s liability was negligence, either of the master himself, or, in certain cases, of his servants. But by the Workmen’s Compensation Act 1897, a new principle was introduced, Acts of 1897 to 1906. whereby certain servants in certain employments were given a right to compensation for injuries, wholly irrespective of any consideration of negligence or contributory negligence. As regards such servants in such employments the master was in effect made an insurer against accidental injuries. The act was confessedly tentative and partial; it dealt only with selected industries, and even within these industries was not of universal application. But where it did apply, it gave a right to a limited compensation in every case of injury by accident arising out of and in the course of the employment, whether that accident had been brought about by negligence or not, and whether the injured servant had or had not contributed to it by his own negligence.

The act applied only to employment on, or in, or about certain localities where, at the same time, the employer was what the act called an “undertaker,” that is, the person whose business was there being carried on. If we wanted to know whether a workman was within the act, we had to ask, first, was he employed on, or in, or about a railway, or a factory, or a mine, or a quarry, or an engineering shop, or a building of the kind mentioned in the act; secondly, was he employed by one who was, in relation to that railway, &c., the undertaker as defined by the act; and thirdly, was he at the time of the accident at work on, or in, or about that railway, &c. Unless these three conditions were fulfilled the employment was not within the act.

The employments to which the act applied comprised railways, factories (which included docks, warehouses and steam laundries), mines, engineering works and most kinds of buildings. “Workman” included every person engaged in an employment to which the act applied, whether by manual labour or otherwise, and whether his agreement was one of service or apprenticeship or otherwise, expressed or implied, oral or in writing.

By the Workmen’s Compensation Act 1900, the benefits of the act of 1897 were extended to agricultural labourers.

The Workmen’s Compensation Act 1906 (which came into force on the 1st of July 1907) extended the right of compensation for injuries practically to all persons in service, and also introduced many provisions not contained in the acts of 1897 and 1900 (repealed). It does not apply to persons in the naval or military service of the crown (s. 9), or persons employed otherwise than by way of manual labour whose remuneration exceeds two hundred and fifty pounds a year, or persons whose employment is of a casual nature, and who are employed otherwise than for the purposes of the employer’s trade or business, or members of a police force, or out-workers, or members of the employer’s family dwelling in his house. But it expressly applies to seamen.

To entitle a workman engaged in an employment to which the act applies to compensation all the following conditions must be fulfilled: (1) There must be personal injury by accident. This will exclude injury wilfully inflicted, Conditions of claim. unless the injury results in death or serious and permanent disablement, but the act introduces a new provision by making the suspension or disablement from work or death caused by certain industrial diseases “accidents” within the meaning of the act. The industrial diseases specified in the 3rd schedule of the act were anthrax, ankylostomiasis, and lead, mercury, phosphorus and arsenic poisoning or their sequelae. But § 8 of the act authorized the secretary of state to make orders from time to time including other industrial diseases, and such orders have embraced glass workers’ cataract, telegraphists’ cramp, eczematous ulceration of the skin produced by dust or liquid, ulceration of the mucous membrane of the nose or mouth produced by dust, &c. To render the employer liable the workman must either obtain a certificate of disablement or be suspended or die by reason of the disease. If the disease has been contracted by a gradual process, all the employers who have employed the workman during the previous twelve months in the employment to which the disease was due are liable to contribute a share of the compensation to the employer primarily liable. (2) The accident must arise out of and in the course of the employment. In each case it will have to be determined whether the workman was at the time of the accident in the course of his employment, and whether the accident arose out of the employment. It will have to be considered when and where the particular employment began and ended. Other difficulties have arisen and will frequently arise when the workman at the time of the accident is doing something which is no part of the work he is employed to do. So far as the decisions have gone, they indicate that if what the workman is doing is no act of service, but merely for his own pleasure, or if he is improperly meddling with that which is no part of his work, the accident does not arise out of and in the course of his employment; but if, while on his master’s work, he upon an emergency acts in his master’s interest, though what he does is no part of the work he is employed to do, the accident does arise out of and in the course of his employment. (3) The injury must be such as disables the workman for a period of at least one week from earning full wages at the work at which he was employed. (4) Notice of the accident must be given as soon as practicable after the happening thereof, and before the workman has voluntarily left the employment in which he was injured; and the claim for compensation (by which is meant notice that he claims compensation under the act addressed by the workman to the employer) must be made within six months from the occurrence of the accident or, in case of death, from the time of death. Want of notice of the accident or defects in it are not to be a bar to proceedings, if occasioned by mistake or other reasonable cause, and the employer is not prejudiced thereby. But want of notice of a claim for compensation is a bar to proceedings, unless the employer by his conduct has estopped himself from relying upon it. (5) An injured workman must, if so required by the employer, submit himself to medical examination.

When these conditions are fulfilled, an employer who is within the act has no answer unless he can prove that the injury arose from the serious and wilful misconduct of the workman. The precise effect of these terms is not clear; but mere negligence is not within them.

Where the injury causes death, the right to compensation belongs to the workman’s “dependents”; that is, such of the members of the workman’s family as were at the time of the death wholly or in part dependent upon the earnings of the workman for their maintenance. “Members of a family” means wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister. The act of 1906 makes also a very remarkable departure in including illegitimate relations in the direct line among “dependents,” for where a workman, being the parent or grandparent of an illegitimate child, leaves such a child dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, such child or parent is to be included in the “members of a family.”

Under the act compensation is for loss of wages only, and is, as has been said, based upon the actual previous earnings of the injured workman in the employment of the employers for whom he is working at the time of the injury. In Amount. case of death, if the workman leaves dependents who were wholly dependent on his earnings, the amount recovered is a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever is the larger, but not exceeding £300; if the period of his employment by the same employer has been less than three years, then the amount of his earnings during the three years is to be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. If the workman leaves only dependents who were not wholly dependent, the amount recovered is such sum as may be reasonable and proportionate to the injury to them, but not exceeding the amount payable in the previous case. If the workman leaves no dependents, the amount recoverable is the reasonable expenses of his medical attendance and burial, not exceeding £10. In case of total or partial incapacity for work resulting from the injury, what is recovered is a weekly payment during the incapacity after the second week not exceeding 50% of the workman’s average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the continuous employment of the same employer; such weekly payment is not to exceed £1—and in fixing it regard is to be had to the difference between the amount of his average weekly earnings before the accident and the average amount which he is able to earn after the accident. Any payments, not being wages, made by the employer in respect of the injury must also be taken into account. The weekly payment may from time to time be reviewed at the request of either party, upon evidence of a change in the circumstances since the award was made, and after six months may be redeemed by the employer by payment of a lump sum. A workman is within the act although at the time of the injury he has been in the employment for less than two weeks, and although there are no actual earnings from the same employer upon which a weekly average can be computed. But how are the average weekly earnings which he would have earned from the same employer to be estimated? The question must be determined as one of fact by reference to all the circumstances of the particular case. Suppose the workman to be engaged at six shillings a day and injured on the first day. If it can be inferred that he would have remained in such employment for a whole week, his average weekly earnings from the same employer may be taken at thirty shillings. If it can be inferred that he would have worked one day and no more, his average weekly earnings from the same employer may be taken at six shillings.

All questions as to liability or otherwise under the act, if not settled by agreement, are referred to arbitration in accordance with a scheme prescribed by the act. Contracting out is not permitted, save in one event: where a scheme of compensation, benefit or insurance for the workmen of an employer has been certified by the Registrar of Friendly Societies to be not less favourable to the workmen and their dependents than the provisions of the act, and that where the scheme provides for contributions by the workmen, it confers benefits at least equal to those contributions, in addition to the benefits to which the workmen would have been entitled under the act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favour of it, the employer may contract with any of his workmen that the provisions of the scheme shall be substituted for the act; such certificate may not be for more than five years, and may in certain circumstances be revoked. The act does not touch the workman’s rights at common law or under the Employers’ Liability Act, but the workman, if more than one remedy is open to him, can enforce only one. When the circumstances create a legal liability in some other person, e.g. where the injury is caused by the negligence of a sub-contractor or of a stranger, in such cases the employer, if required to pay compensation under the act, is entitled to be indemnified by such other person.

Under the Factory Acts, offences, when they result in death or bodily injury to health, may be punished by fine not exceeding £100, and the whole or any part of such fine may be applied for the benefit of the injured person or his family, or otherwise as the secretary of state determines. Similar provisions occur in the Mines Acts. Any sum so applied must be taken into account in estimating compensation under the Employers’ Liability and Workmen’s Compensation Acts.

Law in Other Countries.—In Germany (q.v.) there is a system of compulsory state insurance against accidents to workmen. The law dates from 1884, being amended from time to time (1885, 1886, 1887, 1900, 1903) to Germany. embrace different classes of employment. Occupations are grouped into (1) industry; (2) agriculture; (3) building; (4) marine, to all of which one general law, with variations necessary to the particular occupation in question, is applicable. There are also special provisions for prisoners and government officials. Practically every kind of working-man is thus included, with the exception of domestic servants and artisans or labourers working on their own account. All workmen and officials whose salary does not exceed £150 a year come within the law. No compensation is payable where an accident is caused through a person’s own gross carelessness, and where an accident has been contributed to by a criminal act or intentional wrongdoing the compensation may be refused or only partially allowed. With these exceptions, compensation for injury is payable in case of injury so long as the injured is unfit to work; in case of total incapacity an allowance is made equal to two-thirds of the injured person’s annual earnings, in case of partial incapacity, in proportion to the degree that his wage-earning capacity has been affected. In case of death the compensation is either burial money or an allowance to the family varying in amount from 20 to 60% of the annual earnings according to circumstances. The provision of compensation for accidents falls entirely upon employers, and in order to lighten the burden thus falling upon them, and at the same time to guard against the possible insolvency of an individual employer, associations or self-administering bodies of employers have been formed—usually all the employers of each particular branch of industry in a district. These associations fix the amount of compensation after each accident, and at the end of the year assess the amount upon the individual employers. There is an appeal from the association to an arbitration court, and in particularly complicated cases there may be a further appeal to the imperial insurance department. No allowance is paid until after the lapse of thirteen weeks from the accident, and in the meantime the injured person is supported from a sick fund to which the employers contribute one-third, the employee contributing two-thirds. In Germany quite twelve millions of workpeople are insured; in 1905 a sum of nearly eight millions sterling was paid for accidents, and a million and a half to the families of those killed in accidents.

In Austria the compulsory insurance of workmen was provided for by a law of 1887, with subsequent amendments. Briefly, nearly every class of industrial worker is included under the Austrian law, which is administered by Austria. special territorial insurance institutions, each of them embracing particular classes of industries or workers. The institutions are managed by committees, one-third of the members of each committee being chosen by the minister of the interior, one-third by the employers and one-third by the workers. Compensation is payable, in case of accidents, on a scale proportionate to the injured person’s wages during the preceding year. In case of death, a certain sum is paid for funeral expenses, an annuity to the widow, if one is left, equal to 20% of the deceased’s annual wages—if the widow remarries, she receives a lump sum equal to three annual payments in liquidation of the annuity—an annuity to each legitimate child equal to 15%, or, if the child has no mother, equal to 20% of the father’s wages; an annuity to the father or mother, if dependent on the deceased for support, equal to 20% of the annual wages. As in the English act of 1906 illegitimate children are recognized by being granted an annuity in the case of the death of a father equal to 10% of his wages. In no case can the total amount of the annuities exceed 50% of the deceased’s annual wages. Where the accident has resulted in total incapacity, the workman receives an annuity equal to 60% of his wages. No allowance is paid until after the fourth week, during which time the injured is supported by the sick-insurance institutions. The provision for the system is raised by contributions to the extent of nine-tenths by the employers and one-tenth by the workers, deducted from their wages. Instead of the German method by which an annual payment equal to the amount disbursed is required from each employer, he is required to provide the full amount necessary for the complete payment of the pension, this amount being placed to the credit of a special insurance fund.

In France a system of compulsory state insurance against France. accidents was created by a law of 1898. The principal feature in the French law is the attempt to meet the possible insolvency of the employer by the establishment of a special guarantee fund, created by a small addition to the “business tax” (contribution des patentes), and, in the case of the mining industry, by a small tax on mines.

Norway, by a law of 1894, amended in 1897 and 1899, adopted Norway. a system of compulsory insurance modelled to a great extent on the German system. Instead, however, of a trade association as in Germany, or a district insurance association as in Austria, there is a government insurance office, in which employers have to insure their workmen.

In Denmark a law was passed in 1897 rendering employers Denmark. personally liable for the amount of compensation for accidents, but employers may relieve themselves of this liability by insuring workmen in an assurance association approved of by the minister of the interior. This course, however, is discretionary with employers.

In Italy, although many attempts were made between 1889 and 1898 to introduce a system of compulsory insurance, it was not until the latter year that the principle was adopted. There is a National Bank for the Insurance Italy. of Working men against Accident (Cassa Nazionale di Assicurazione per gli infortuni degli operaji sul lavoro), created under a law of 1883. It has special privileges, such as exemption from taxation and the employment of the branch offices of the state post-office savings bank as local offices. Under the law of 1898 there is a primary obligation on the employer to insure his workmen with the National Bank, but he may, if he prefers, insure with other societies approved by government. Employers employing about five hundred workmen may, instead of insuring, establish a fund for the payment of not less than the statutory compensation, subject to giving adequate security for the sufficiency of the fund. Exemption from compulsory insurance is granted to employers who have established a mutual insurance association, which must comply with certain prescribed conditions. Railway companies, also, are exempt, if they have relief funds which conform with the provisions of the act.

In Spain an act of the 30th of January 1900, adopted the Spain. principle of the personal responsibility of the employer for accidents to workmen other than those due to vis major. The act also lays down regulations for preventing accidents in dangerous trades, and releases the employer from personal liability on effecting adequate insurance of his workmen with an approved insurance company.

Holland has adopted the principle of compulsory insurance by a law of the 2nd of January 1901. An employer has to pay the necessary premium to the State Insurance Office, or by Holland. depositing adequate security with the State Office he may undertake the payment of the prescribed compensation himself. Or he may transfer his liability to an insurance company, provided the company deposit adequate security with the State Office. The State Insurance Office is under the management of directors appointed by the crown, and decides on all questions as to compensation; there is also a “Supervisory Board” of the State Office with joint representation of employers and workmen. There is an appeal from the State Office to Councils of Appeal, and from them to a National Board of Appeal.

Greece has a law of the 21st of February 1901, providing Greece. for compensation for accidents causing incapacity of more than four days’ duration to workmen in mines, quarries and smelting works. The employer is exclusively liable for such compensation and for medical expenses during the first three months; after that time he is liable for one-half, the other half being borne by a miners’ provident fund, supported by certain taxes on the properties affected, fines, &c.

By a law of the 5th of July 1901, Sweden adopted the principle Sweden. of the personal liability of the employer for industrial accidents. The employer can, however, insure himself against liability in the Royal Insurance Institute. Compensation becomes payable after the expiration of sixty days from the date of the accident.

Russia has a law which came into force on the 1st of January Russia. 1904. Under this law employers in certain specified industries are bound to indemnify workers for incapacity of more than three days’ duration due to injury arising out of their work. Employers are exempt from liability by insuring their workmen in insurance companies whose terms are not less favourable than those laid down by the law.

Belgium passed a law dealing with industrial accidents on the 24th of December 1903. It adopts the principle of the personal liability of the employer in certain specified Belgium. trades or industries. There is a power of extension to such other undertakings as may be declared dangerous by the Commission on Labour Accidents. Employers may exempt themselves from their liability by contracting for the payment of compensation by an insurance company approved by the government or by the National Savings and Pension Fund. Where an employer does not so contract, he must (with certain exemptions) contribute to a special insurance fund. The law of 1903 also established a permanent Commission on Labour Accidents.

Switzerland Switzerland. in 1899 adopted a law providing for accident insurance, but it was defeated on referendum in May 1900.

In the United States the law mainly depends on the doctrine of common employment, and the extent to which this doctrine is applied varies considerably in the different states, more particularly as to who are and who are not to be regarded as fellow-servants. The tendency, however, has been to increase the liability of the employer for the United States. negligence of a fellow-servant, and in the case of employment on railways many states have passed laws either modifying or abrogating the doctrine. Colorado, by a law of 1901, has entirely abrogated it; and Alabama, Massachusetts and New York have laws generally similar to the English act of 1880. But the greatest departure, due to the initiative of President Roosevelt, has been the passing by the Federal Congress of the laws of April 22 and May 30, 1908, one giving damages to injured employees of interstate carriers by railroad, and common carriers by railroad in Territories, the District of Columbia, the Canal Zone and other territory governed by Congress, and the other giving regular wages for not more than one year to injured employees of the U.S. government in arsenals, navy yards, construction work on rivers, harbours and fortifications, hazardous work in connexion with the Panama Canal or Reclamation Service, and in government manufacturing establishments. These national laws, which were intended to serve as an example to the states, specifically provided for employers’ liability and for the non-recognition of the doctrine of common employment.