laid down. It is a matter that addresses itself to the sound common sense of the jury under all these circumstances."

§36. SUIT BY POOR PERSON.

Taking cognizance of the fact that many plaintiffs are unable, by reason of their poverty, to pay the onerous expenses incident to proceedings in the United States courts, Congress, by an Act approved June 25, 1910, 61st Congress, Sess. II, c. 435, enacted:

"That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, or a writ of error, or an appeal to the Circuit Court of Appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such

writ of error or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks by such suit or action or writ of error or appeal, and setting forth briefly the nature of his alleged cause of action or appeal."

The constitutionality of the Employers' Liability Act of 1908 has been expressly upheld in Walsh v. New York, N. H. & H. R. Co., 173 Fed. Rep. 494; Fulgham v. Midland Valley R. Co., 167 Fed. Rep. 660; Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 942; Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893; Colasurdo v. Central R. R. of N. J., 180 Fed. Rep. 832; St. Louis, I. M. & S. Ry. Co. v. Conley, 187 Fed. Rep. 949; Bradbury v. Chicago, R. I. & P. Ry. Co. (Iowa), 128 N. W. Rep. 1; Owens v. Chicago G. W. Ry. Co. (Minn.), 128 N. W. Rep. 1011.

In the following cases the constitutionality of the Act was upheld by implication: Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643; Roush v. Great Northern Ry. Co., U. S. Circuit Court,

E. Dist. of Washington, October 5, 1909; Winfree v. Northern Pacific Ry. Co., 164 Fed. Rep. 698; St. Louis, I. M. &. S. Ry. Co. v. Hesterly (Ark.), 135 S. W. Rep. 874.

But the constitutionality of the statute has been challenged on the following grounds:

a. That Congress is without power to regulate the relation of Master and Servant;

b. That the Act abridges the freedom of Contract;

c. That the Act provides a discriminatory classification; and

d. That Congress is without power to provide a remedy for injuries caused by intrastate servants.

These will be treated in their order, and under sub-division e of this discussion will be considered seriatim the principal objections to the constitutionality of the Employers' Liability Act of 1908 suggested by the Supreme Court of Errors of Connecticut, in the case of Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352.

§ 38. REVIEW OF AUTHORITIES IN WHICH POWER OF REGULATION IS IMPLIED.

That the Act regulates the relation between master and servant is not of itself a constitutional objection to its validity. Where necessary and proper in order to regulate and safeguard interstate commerce, Congress has the power to regu

late the relation of master and servant engaged in that commerce.

Congress has acted upon this interpretation in a well-recognized code of specific regulations of the terms of the contract of employment in the merchant marine. Such regulations can only be supported by the power to regulate commerce. Congressional power to enact such legislation is sustained by the Supreme Court in the case of Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. Rep. 821.

Mr. Justice Story, in Barque Chusan, 2 Story, 455, 464, 465, said: "The power to regulate commerce includes the power to regulate navigation with foreign nations and among the States; and it is an exclusive power in Congress. This I conceive has been firmly established by the Supreme Court of the United States. (See Gibbons v. Ogden, 9 Wheat. 1, 193 to 198.) And the doctrine stands, as I conceive, upon grounds which cannot be shaken without endangering the interests of the whole Union, if not the very existence of the Constitution as a frame of government for the professed objects and purposes which it was intended to accomplish. Now, there cannot be a doubt that the prescribing of rules for the shipping of seamen and the navigation of vessels engaged in foreign trade, or trade between the States, is a regulation of commerce. In what re