This enthusiastic rivalry, this persistent debate, this constant clash of opinion, lasting for centuries, stimulated the study of the law, and brought into play those opposing forces whose combined operation evolve order, truth and justice, in the moral as in the physical uni

verse.

Let me hasten to a conclusion with the bare mention of two great jurists of the reign of Adrian. Gaius, whose name is, perhaps, more familiar to the general legal student than that of any other jurisconsult, because of his interesting account of ancient laws and proceedings, and because his Institutes were the model and precursor of the famous Institutes of Justinian, and Salvius Julianus, who was the author of that noble work, the Perpetual Edict, which put an end to the edicts of individual Prætors, and was adopted as the permanent guide and rule of all succeeding Prætors.

The race of great jurisconsults culminated in the famous quartette who illustrated the reigns of Caracalla, Heliogabalus, and the Severi: Papinian, Paul, Ulpian and Modestinus. Paul was the most prolific of all the writers upon Roman law, and his works furnish more than two thousands texts to the Pandects. He was a jurist of vast learning and sound judgment, but his style was harsh and crabbed, and his temper sour and fault-finding.

Ulpian was a wise, gracious and modest legal critic. His style was limpid, polished and eloquent, and though his writings were less voluminous than those of Paul, they furnished more texts to the Pandects than those of any other jurisconsult.

Modestinus, though no mean jurist, hardly bears comparison with his elder contemporaries, and is chiefly distinguished as the last stepping-stone from which Roman jurisprudence plunged into utter mediocrity and decay.

By universal consent of his contemporaries and successors and of all students of Roman law, Papinian is assigned the highest place among all the jurisconsults. The language of eulogy has been exhausted in his praise. Justinian proclaims him acutissimi ingenii virum et merito ante alios jurisconsultos excellentem. He is referred to as "splendidissimum," "asylum juris et legalis doctrinæ thesaurus," "armarium legum," "splendidissima lucerna juris.”

St. Jerome assigns to him the same rank as the interpreter of human law which St. Paul occupied as the interpreter of divine law. Cujas says that "he alone was entitled to be called the preceptor of all jurists

A

whether of his own or of later days"; and in an access of enthusiasm, he says, that Papinian is the veritable God of Law, to whom, if christianity permitted such rites, altars should be erected and sacrifices made. rescript of the Emperors Theodosius and Valentinian, after declaring that the writings of Papinian, Paul, Ulpian, Gaius and Modestinus should be authoritative for the judge, decreed that, in case of equality or doubt, the opinion of Papanian should prevail.

He sacrificed his life to the principle which he proclaimed in his writings, that "we must not believe it to be possible for us to do deeds which offend against piety, public credit, honor and morality." When Carracalla assassinated his brother, Geta, and called on Papinian to invent excuses and defenses for the deed, Papinian heroically replied that it was easier to commit such a crime than to justify it, and that to bring false accusations against the innocent victim of such a murder would be to commit a second assassination;" at which the incensed tyrant caused his faithful adviser to be instantly executed in his pres

ence.

66

As the function of the jurisconsult declined, that of the advocate or practicing lawyer rose into prominence. Had time permitted, it would have been my pleasure to pursue the career of the Roman lawyer, with an account of the judiciary system as finally established, and of the organization of the Roman Bar in the time of Justinian. But the subject is far too vast for the occasion, and I have already detained you too long. These few flowers, or weeds, plucked from the vast fields traversed and cultivated by the ancient lawyers, must suffice. I trust they may serve to recall some dim outlines of the noble and heroic figure presented by the lawyer of ancient times. The type of the Greek lawyer was the eloquent and resistless Advocate. The type of the Roman lawyer was the profound and philosophic Jurist. I am no worshipper of ancient, or belittler of modern things. I am, on the contrary, a believer in human progress, and admit the selfevident truth that, as we stand upon the shoulders of our ancestors, we naturally reach higher and achieve a loftier eminence. But a just and candid criticism compels the admission that, under the most liberal estimate of the achievements of the modern lawyer, the Greek Demosthenes still stands the First of Advocates, and the Roman Papinian the First of Jurists.

Plato in his Republic, Sir Thomas Moore in his Arcadia, and Bulwer in his Coming Race, have been pleased to exclude the lawyer from

their imaginary commonwealths.
and reckon without their host.
must continue to be far less necessary to the human race (in the words
of Merlin) "to have great painters, poets, historians and physicians,
than to have great jurisconsults, who study the immortal code of duty,
teach what is just and what unjust, what is permitted and what for-
bidden, and instruct mankind in the duties which they owe to them-
selves, to their fellow-men, to their country and to God."

In this they err in their philosophy
While the reign of Law endures, it

PAPER

READ BY

RICHARD B. DAVIS.

LIABILITY OF EMPLOYER TO EMPLOYEE FOR DAMAGES RESULT. ING FROM NEGLIGENCE OF CO-EMPLOYEES.

There is probably no principle of law of more frequent application in the actual practice of the profession, at the present day, than the one I have selected as the subject of this paper.

The multiplication of labor-saving machinery, during the last fifty years, and the practical monopoly of the carrying, mining, and manufacturing business of the country, acquired by incorporated companies acting entirely through their employees, have necessitated a more accurate inquiry by the courts into the relative rights and duties of employer and employee than before that time was necessary.

So long as the manifold industries of the country were conducted by private persons, under their own supervision, the liability of the employer for injuries to his employee, whether caused by the negligence of himself or a co-employee, seems not to have been difficult of solution. In the one case he was clearly liable upon the fundamental principle of natural right and justice, that every rational person is liable to all other persons for any injury occasioned by his negligence. In the other case he was not liable, because, upon the same principle of natural right and justice, no one was liable for an injury occasioned by the negligence or wrong-doing of another person.

At least such seems to have been the generally received opinion, for there is no case reported in the English or American books prior to Priestley and Fowler, in 1837, in which it was attempted to hold the employer liable for injury occasioned to one servant by the negligence or wrong-doing of a co-servant, while there are numerous cases where the employer has been held liable for injury caused by his own negli