The other crowning benefit to be worked out by the code, comes if possible, in more questionable shape. We are told that it "would lessen the labors of judges and lawyers, enabling them both to dispense with the larger number of those books which now incumber the shelves of their libraries."

Two propositions: the one as to saving labor, the other as to dispensing with books. These prophetic assurances, thrown out in that unqualified and careless form, evidently without pausing long enough for the blush of shame to mantle the cheek, may be tested by an appeal to reason and to known facts and experience.

If it were the expression of a mere hope or expectation, of an opinion with a modest qualification, it might be respected. We all make allowances for a daring and affirmative writer. He is admired by students. He may not be conscious of it, and yet a self-confidence, more rare than exemplary, may lie at the bottom of, and permeate, his argument. But, if he has the facts; if his speculations come within the range of probabilities; if he could observe the distinction between assertions and proofs, assumptions and conclusions, the ideal and the actual; and avoid the superlative in thought and doctrine as well as in expression, he might not only be read, but believed in. The trouble is, that he will submit to no such limitations. He believes in progress, dispatch; rides at a furious rate, regardless of the condition of the road.

-

It is easy for such a writer to assume that gentlemen intrusted with the duty of preparing a code of laws for legislative adoption, could state rules and principles of law and equity with such clearness, so inclusively and exclusively, as to leave room for only one interpretation or construction. As if some significance were not due to the fact that Justinian had occasion to prohibit commentaries on the newly digested laws; to the fact that Frederick the Great, apprehending judicial constructions of the code not in keeping with his own views, imposed restraints theron;* to the fact that the king of Bavaria had resort to the like arbitrary experiment, and to the conclusion of Lord Bacon, that a radical change was "perilous,"† and of Chancellor Kent, that the expectation of such precision of thought and perspicuity of language in any code of statute laws "would be quite visionary."

But Mr. Field was not oblivious to the cloud of witnesses who have left their testimony on that subject, so he calls up illustrative instances: the statute Another section had a like provision as to an answer. But the legislature, jealous, perhaps, of such a test, or deeming it an injurious reflection, struck out those words, and the benefit of the rule was lost forever. But, it is said, that, prior to those amendments, a presiding justice, unable to determine whether a pleading before him conformed to the statute, illustrated the character of the rule by taking the opinion of a witness known to possess that measure of mental capacity. The opinion of the witness was regarded as the highest evidence then known to the law!

In his order to the grand chancellor, printed at the head of the Fredrician code, published in 1781, he says: "But I will never suffer a judge, a tribunal, or a minister of state to take upon them to interpret, extend, or restrain the meaning of laws, still less to create new laws." Life of Frederick II, vol. 2, p. 331. London, 1789.

"I dare not advise to cast the laws into a new mould. The work which I propound, tendeth to the pruning and grafting of the law, and not the ploughing up and planting it again, for such a remove I should hold for a perilous innovation. Bacon's works, p. 231, vol. II. Phila. ed.

1852.

of frauds has been "loaded with interpretation and commentary," and, "after eighty years the courts have not yet done with deciding upon the construction" of the constitution of the United States. It was not necessary to his argument, or he might, perhaps, have further said, that, in forty years, the codification contained in our revised statutes, and in little more than half that time, our code of procedure, bad drawn to themselves accretions almost as expensive and burdensome.

It may be he cites the highest authority — that "every line of the statute of frauds is worth a subsidy." We are to remember that it was also said, that "every line had cost a subsidy."* As the full price has been paid, and as we have entered into other men's labors, we would not be deprived of the statute of frauds. But, if it were proposed to rival the history of that statute by a legislative act, covering and absorbing some important domain of the law, to the end, that, after a hundred years of litigation as to its provisions, future generations might enjoy the perfected benefit, most prudent men would sit down to count the cost; would ask, with Sir Boyle Roche, "Why should we beggar ourselves to benefit posterity? What has posterity done for us?"

Some readers who may readily perceive the weight due to those illustrative instances, if cited as objections to a code, may not as readily perceive any ray of relation between those instances and the general argument of which they form a part. It may not occur to them, that because the statute of frands, covering a mere fragment of the laws, is found to be in working order after the courts for nearly two hundred years, and by almost countless decisions, have settled questions of construction, we may, without apprehending a like experience, put the whole body of the law in statutory forms. Or, that because our fathers framed a constitution, a work of necessity, we should, in this form, follow their example, without such necessity. Nor will it occur to them that we are so much wiser than the great men of the past, that our work, in an extended form, will be free from the uncertainties, ambiguities, and defects which characterized their labors.

But it would have been most material to the argument if some instance could have been given of a code of laws, which, independently of arbitrary protection, has stood the test of actual use in the administration of justice, without legislative amendments, or judicial contests, or construction, and without increasing the labor of judges and lawyers, and the books, reports, and commentaries incumbering the shelves of their libraries.

(To be continued.)

J. N.

Hon. Stephen Phillips, attorney-general of the Sandwich Islands, is at Washington, on a brief visit.

The preliminary examination of Judge Linton Stephens, of Georgia, on the charge of obstructing the execution of the enforcement law, has ended in his being bound over in the sum of $5,000, to appear at the next term of the United States circuit court, to be held at Savannah, April 10.

Throop's Treatise, vol. I, p. 72, note.

LIABILITY OF PASSENGER CARRIERS FOR THE WILLFUL MISCONDUCT OF THEIR

SERVANTS.

The case of Goddard v. The Grand Trunk Railway, recently decided by the supreme judicial court of Maine, and heretofore noticed by us (vol. II, p. 373), is one of considerable importance, if not as laying down any new principle of law, at least as a useful illustration of a principle not always completely understood i. e., the nature and extent of the liability of passenger carriers for the willful misconduct of their servants toward passengers.

The facts of the case were as follows: The plaintiff was a passenger in the defendant's railway car, having paid his fare and received a ticket. On request he surrendered his ticket to a brakeman employed on the train, who, in the absence of the conductor, was authorized to demand and receive it. Shortly after the brakeman approached the plaintiff in his seat, and without provocation, and in language coarse, profane and grossly insulting, denied that the plaintiff had either surrendered or showed him his ticket, called him a liar, charged him with attempting to avoid payment of his fare and with having done the same before; and, leaning over the plaintiff, then in feeble health, and bringing his fist down close to his face, violently shook it there and threatened to split his head open and spill his brains on the spot, with much more to the same effect. The defendants, although knowing of the brakeman's misconduct, retained him in their employ. No attempt was made at the trial to justify or excuse the act. The jury returned a verdict for the plaintiff for $4,850, which verdict the defendants sought to set aside, on the ground, first, that the brakeman's act was willful and malicious, and neither directly nor impliedly authorized by them; and, second, that the damages awarded were excessive. The court, in refusing to set aside the verdict, presented a very clear exposition of the law governing the liability of carriers in cases of the kind, and a very careful review of the decisions bearing on the question. After referring to the first ground on which the defendants claimed to exonerate themselves, the court proceeded:

"The fallacy of this argument, when applied to the common carrier of passengers, consists in not discriminating between the obligation which he is under to his passenger, and the duty which he owes a stranger. It may be true that if the carrier's servant willfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master's passengers. The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled, that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe and comfortable. He must not only protect his passengers

against the violence and insults of strangers and copassengers, but, a fortiori, against the violence and insults of his own servants. If this duty to the pasnished, but, on the contrary, the passenger is assaulted senger is not performed, if this protection is not furand insulted through the negligence or the willful misconduct of the carrrier's servant, the carrier is necessarily responsible.

"And it seems to us it would be cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust. To their care and fidelity are intrusted the lives and limbs and comfort and convenience of the whole traveling public, and it is certainly as important that these servants should be trustworthy as it is that they should be competent. It is not sufficient that they are capable of doing well, if in fact they choose to do ill; that they can be as polite as a Chesterfield, if, in their intercourse with the passengers, they choose to be coarse, brutal and profane. The best security the traveler can have that these servants will be selected with care is, to hold those by whom the selection is made responsible for their conduct.

"This liability of the master is very clearly expressed in a recent case in Massachusetts. The court say, that wherever there is a contract between the master and another person, the master is responsible for the acts of his servant in executing that contract, although the act is fraudulent and done without his consent. Howe v. Newmarch, 12 Allen, 55.

"And Messrs. Angell and Ames, in their work on Corporations (sec. 388, p. 404, 8th ed.), say: 'A distinction exists as to the liability of a corporation for the willful tort of its servant toward one to whom the corporation owes no duty except such as each citizen owes to every other, and that toward one who has entered into some peculiar contract with the corporation by which this duty is increased; thus it has been held, that a railroad corporation is liable for the willful tort of its servants whereby a passenger on the train is injured.'

"In Brand v. Railroad, 8 Barb. 368, the court say: 'A passenger on board a stage coach or railroad car, and a person on foot in the street, do not stand in the same relation to the carrier. Toward the one the liability of the carrier springs from a contract, express or implied, and upheld by an adequate consideration. Toward the other, he is under no obligation but that of justice and humanity. Hence a passenger, who is injured by a servant of the carier, may have a right of action against him, when one not a passenger, for a similar injury, would not.'

"In Moore v. Railroad, 4 Gray 465, the plaintiff was forcibly put out of a car for not giving up his ticket or paying his fare, when, in fact, he had already surrendered his ticket to some one employed on the train. The defendants insisted that they were not responsible for the misconduct of the conductor; and, further, that an action for assault would not lie against a corporation. But the court held otherwise, and the plaintiff recovered.

"In Seymour v. Greenwood, 7 H. and N 354, the plaintiff was assaulted and taken out of the defendant's omnibus by one of his servants. The defendant

The right of the jury to give exemplary damages for injuries wantonly, recklessly or maliciously inflicted, is as old as the right of trial by jury itself; and is not, as many seem to suppose, an innovation upon the rules of the common law. It was settled in England more than a century ago.

"In 1763 Lord Chief Justice Pratt (afterward Earl of Camden), with whom the other judges concurred, declared that the jury had done right in giving exemplary damages. Huckle v. Money, 2 Wils. 205.

"In another case the same learned judge declared, with emphasis, that damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty. Campbell's Lives of the Chancellors, Am. ed., vol. 5, p. 214.

"In 1814, the doctrine of punitive damages was stringently applied in a case where the defendant, in a state of intoxication, forced himself into the plaintiffs company, and insolently persisted in hunting upon his grounds. The plaintiff recovered a verdict for five hundred pounds, the full amount of his ad damnum, and the court refused to set it aside. Mr. Justice Heath remarked in this case, that he remembered a case where the jury gave five hundred pounds for merely knocking a man's hat off, and the court refused a new trial. It goes, said he, to prevent the practice of dueling, if juries are permitted to punish insult by exemplary damages. Merest v. Harvey, 5 Taunt. 442; see, also, to the same effect, Sears v. Lyon, 2 Stark. 37, decided in 1818.

"In 1844, Lord Chief Baron Pollock said, that in actions for malicious injuries, juries had always been allowed to give what are called vindictive damages. Doe v. Filliter, 13 M. and W. 50.

"In 1858, in an action of trespass for taking personal property on a fraudulent bill of sale, the defendant's counsel contended that it was not a case for the application of the doctrine of exemplary damages; but the court held otherwise. No doubt, said Pollock, C. B., it was a cue in which vindictive damages might be given. Thomas v. Harris, 3 H. and N. 961. "In 1860, in an action for willful negligence, the defendant contended that the plaintiff's declaration was too defective to entitle him to exemplary damages; but the court held otherwise; and the judge who tried the case remarked that he was glad the court had come to the conclusion that it was competent for the jury to give exemplary damages, for he thought the defendant had acted with a high hand. Emblen v. Myers, 6 H. and N. 54.

666 'Damages exemplary,' is now a familiar title in the best English law reports. See 6 H. and N. 969.

"It was the firmness with which Lord Camden (then Chief Justice Platt) maintained and enforced the right of the jury to punish with exemplary damages the agents of Lord Halifax (then secretary of state) for the illegal arrest of the publishers of the North Briton, that made him so immensely popular in England. Nearly or quite twenty of those cases appear to have been tried before him, in all of which enormous damages were given, and in not one of them was the verdict set aside. In one of the cases a verdict for a thousand pounds was returned for a mere nominal imprisonment at the house of the officer VOL. 3.

making the arrest, and the court refused to set it aside. Beardmore v. Carrington, 2 Wils. 244.

"After this,' says Lord Campbell, in his Lives of the Chancellors, he became the idol of the nation. Grim representations of him laid down the law from sign-posts, many busts and prints of him were sold, not only in the streets of the metropolis, but in the provincial towns; a fine portrait of him, by Sir Joshua Reynolds, with the flattering inscription, 'in honor of the zealous asserter of English liberty by law,' was placed in the Guildhall of the city of London; addresses of thanks to him poured in from all quarters; and one of the sights of London, which foreigners went to see, was the great Lord Chief Justice Pratt."

"In this country perhaps Lord Camden is better known as one of the able English statesmen who so eloquently defended the American colonies against the unjust claim of the mother country to tax them. Lord Campbell says some portions of his speeches upon that subject are still in the mouths of school-boys. But in England his immense popularity originated in his firm and vigorous enforcement of the doctrine of exemplary damages. And we cannot discover that the legality of his rulings in this particular was ever seriously called in question. On the contrary, we find it admitted by his political opponents that he was a profound jurist and an able and upright judge. His stringent enforcement of the right of the jury to punish flagrant wrongs with exemplary damages, arrested not only great abuses then existing, but it has had a salutary influence ever since. It won for him the title of the 'asserter of English liberty by law.'

"In this country the right of the jury to give exemplary damages has been much discussed. It seems to have been first opposed by Mr. Theron Metcalf (afterward reporter and judge of the supreme court of Massachusetts), in an article published in 3 American Jurist, 387, in 1830. The substance of this article was afterward inserted in a note to Mr. Greenleaf's work on evidence. Mr. Sedgwick, in his work on damages, took the opposite view, and sustained his position by the citation of numerous authorities. Professor Greenleaf replied in an article in the Boston Law Reporter, vol. 9, p. 529. Mr. Sedgwick rejoined in the same periodical, vol. 10, p. 49. Essays on different sides of the question were also published in 3 American Law Magazine (N. S.) 537, and 4 American Law Magazine (N. S.) 61. But notwithstanding this formidable opposition, the doctrine triumphed, and must be regarded as now too firmly established to be shaken by any thing short of legislative enactments. In fact, the decisions of the courts are nearly unanimous in its favor.

"In a case in the supreme court of the United States Mr. Justice Greer, in delivering the opinion of the court, says, it is a well-established principle of the common law that in all actions for torts the jury may inflict what are called punitive or exemplary damages, having in view the enormity of the offense rather than the measure of compensation to the plaintiff. We are aware,' the judge continues, 'that the propriety of this docti'ue has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition

of what the law is, the question will not admit of argument.' Day v. Woodworth, 13 How. 363.

"In a case in North Carolina the court refer to the note in Professor Greenleaf's work on evidence, and say that it is very clearly wrong with respect to the authorities; and in their judgment wrong on principle; that it is fortunate, that while juries endeavor to give ample compensation for the injury actually received, they are also allowed such full discretion as to make verdicts to deter others from flagrant violations of social duty. And the same court hold, that the wealth of the defendant is a proper circumstance to be weighed by the jury, because a thousand dollars may be a less punishment to one man than one hundred dollars to another. In one case the same court sustained a verdict which in terms assessed the actual damages at $100, and the exemplary damages at $1000. The court held it was a good verdict for $1100. Pendleton v. Davis, 1 Jones (N. C.) 98; McAuley v. Birkhead, 13 Iredell, 28; Gilreath v. Allen, 10 id. 67.

"In fact, Professor Greenleaf is himself an authority for the doctrine of exemplary damages. Speaking of the action for assault and battery, he says the jury are not confined to the mere corporal injury, but may consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon award such exemplary damages as the circumstances may in their judginent require. 2 Greenl. on Ev., 2 89.

"But if the great weight of Professor Greenleaf's authority were to be regarded as opposed to the doctrine, we have, on the other hand, the great weight of Chancellor Kent's opinion in favor of it. He says, surely this is the true and salutary doctrine. And after reviewing the English cases, he continues by saying it cannot be necessary to multiply instances of its application; that it is too well settled in practice, and too valuable in principle to be called in question. Tillotson v. Cheetham, 3 Johns. 56, 64.

"This brief review of the doctrine of exemplary damages is not so much for the purpose of establishing its existence, as to correct the erroneous impression which some members of the legal profession still seem to entertain, that it is a modern invention, not sanctioned by the rules of the common law. We think every candid-minded person must admit that it is no new doctrine; that its existence as a fundamental rule of the common law has been recognized in England for more than a century; that it has been there stringently enforced under circumstances which would not have it allowed to pass unchallenged, if any pretext could have been found for doubting its validity; and that in this country, notwithstanding an early and vigorous opposition, it has steadily progressed, and that the decisions of the courts are now nearly unanimous in its favor. It was sanctioned in this State, after a careful and full review of the authorities, in Pike v. Dilling, 48 Me. 539, and cannot now be regarded as an open question.

"But it is said that if the doctrine of exemplary damages must be regarded as established in suits against natural persons for their own willful and malicious torts, it ought not to be applied to corporations for the torts of their servants, especially where the tort

is committed by a servant of so low a grade as a brakeman on a railway train, and the tortious act was not directly or impliedly authorized nor ratified by the corporation; and several cases are cited by the defendants' counsel, in which the courts seem to have taken this view of the law; but we have carefully examined these cases, and in none of them was there any evidence that the servants acted wantonly or maliciously; they were simply cases of mistaken duty; and what these same courts would have done if a case of such gross and outrageous insult had been before them, as is now before us, it is impossible to say; and long experience has shown that nothing is more dangerous than to rely upon the abstract reasoning of courts, when the cases before them did not call for the application of the doctrines which their reasoning is intended to establish.

"We have given to this objection much consideration, as it was our duty to do, for the presiding judge declined to instruct the jury that if the acts and words of the defendants' servant were not directly nor impliedly authorized nor ratified by the defendants, the plaintiff could not recover exemplary damages. We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to railroad corporations, in their capacity of common carriers of passengers; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases where such an act is directly or impliedly ratified; for no such cases will ever occur.

"A corporation is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants' minds and hands. An attempt, therefore, to distinguish between the guilt of the servant and the guilt of the corporation; or the malice of the servant and the malice of the corporation; or the punishment of the servant and the punishment of the corporation, is sheer nonsense, and only tends to confuse the mind and confound the judgment. Neither guilt, malice, nor suffering is predicable of this ideal existence called a corporation. And yet, under cover of its name and authority, there is, in fact, as much wickedness, and as much that is deserving of punishment, as can be found anywhere else. And since these ideal existences can neither be hung, imprisoned, whipped, nor put in the stocks-since, in fact, no corrective influence can be brought to bear upon them except that of pecuniary loss- it does seem to us that the doctrine of exemplary damages is more beneficial in its application to them than in its application to natural persons. If those who are in the habit of thinking that it is a terrible hardship to punish an innocent corporation for the wickedness of its agents and servants, will for a moment reflect upon the absurdity of their own thoughts, their anxiety will be cured. Careful engineers can be selected who will not run their trains into open draws; and careful