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. A 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.

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

gence. Since that time, however, there has been a constantly increasing number of cases, both in England and America, involving this question, until now the current volumes of the decisions of the highest courts of all the States are filled with such cases, and we have an accumulated array of authorities on the subject so voluminous and conflicting that I am really somewhat surprised at the temerity which tempted me to select it as the subject of this paper. I console myself, however, with the thought that, although I may fall far short of discovering the true rule I am seeking for, I shall not lack respectable company among the numerous courts and text writers who have essayed the same task.

It has been said by one of the most learned courts in this country that "the cases on this subject reported in the books are numerous and contradictory, and it would be an endless task to review, and utterly futile to attempt to reconcile them." Moore vs. Wabash R. R., 85 Mo., 509. Notwithstanding this opinion, however, the best text writers have busied themselves with the subject, and have prepared and published voluminous treatises, showing the rule as generally adopted, and summaries of the various refinements and limitations which have become engrafted thereon by the decisions of the courts, together with full lists of the authorities for each. I shall not, therefore, attempt the hopeless task of reconciling the cases, nor the useless one of preparing a mere list of the authorities sustaining the rule, and those establishing the different modifications thereof which have become established by decisions of the highest courts. I propose merely to examine the principles upon which the doctrine rests, as disclosed by the authorities, to find if there is not some safe general rule that may be deduced therefrom.

The case of Farwell vs. Boston and Worcester R. R. Co., 4 Metc., 385, decided in Massachusetts in 1841, is generally regarded as the leading case upon the subject both in England and in this country. At least the terms of the rule as there laid down by Chief Justice Shaw have since been generally approved, and Mr. Beach says, "His opinion contains, in substance, all the arguments which in forty succeeding years have been discovered by the courts in favor of the rule as therein adopted." Beach on Contributory Negligence, § 103. The rule is stated by Chief Justice Shaw as follows: "The general rule resulting from considerations as well of justice as of policy is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the