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 THE MINING ASSOCIATION OF GREAT 
 BRITAIN. 
 
 EMPLOYERS' LIABILITY 
 
 FOR INJURIES. 
 
 CORRESPONDENCE 
 
 AND • 
 
 ARTICLES 
 
 RE-PRINTED FROM "THE TIMES." 
 
 Forwarded with the Compliments of the Mining Association of 
 
 Great Britain. ^ 
 
 MASKELL WK, PEACE, Secretary, 
 
 6, Strand, LONDOU". 
 
 WIGAX : ■■ 
 
 WALL, PKINTEE, "OBSERVEB" OFFICE, WALLGATE. 
 1878.
 
 EMPLOYERS' LIABILITY FOR INJURIES. 
 
 To THE Editor of the ''Times." 
 
 Sir, — In the debate on Wednesday in the House of 
 Commons Mr. Lowe said of the present law that '' nothing 
 was more uncertain than that the whole of it had been 
 created since 1838. The words ' common employment' had 
 been introduced bit by bit as occasion requireid, and the 
 manner in which that had been done was not by the Judges 
 saying ' This or this is the law,' but by now on one occasion 
 and then on another, on some statement of fact, supposing 
 contracts which never existed, and had never been even heard 
 of until the emergency from which they were excogitated 
 arose. Thus came to be established bit by bit a body of 
 jurisprudence by which working men were deprived of their 
 right to compensation." 
 
 Mr. Bulwer, surprised at this statement, as eYerj lawyer 
 in the House must have been, was directly questioning the 
 correctness of Mr. Lowe's assertion that the Judges of this 
 country had since 1838, by what may be called ''Judge-made 
 law," deprived working men uf a right they previously 
 possessed, and was maintaining that the law as now existing 
 had always been the same, when the sitting came to a close. 
 It was clear that if Mr. Lowe be wrong his argument is mis- 
 leading, and it is desirable that working men above all others 
 should not be misled on such a matter. 
 
 What is the fact ? It is this — that prior to 1837 it had 
 not occurred to anyone in the position of a servant to suppose 
 that if he were injured by the fault of a fellow-servant he 
 could recover damages from one not in fault — his master. In 
 that year, in the case of *' Priestly v. Fowler," a butcher's 
 servant, travelling on his master's van, having been injur ep
 
 tlirough tlie fault of the van-driver, his fellow-servant, 
 brought an action against his master. Lord Abinger, in 
 delivering the judgment of the Court of Exchequer against 
 the plaintiff, said, ''It is admitted that there is no precedent 
 for the present action by a servant against a master. We are 
 therefore to decide the question upon general principles ;" 
 and on the general principles stated in a luminous judgment, 
 in which the alarming and anomalous consequences of sus- 
 taining such an action were pointed out, it was held that 
 there was no legal claim against a master not himself in fault. 
 The statement of Lord Abinger is sufficient to show that Mr. 
 Lowe is wrong in stating that a new law or a new legal 
 doctrine was introduced about 1838, or that working men 
 were then or thereaf cer deprived of any right they had ever 
 previously had to compensation. 
 
 It is only right that those who now seek to alter the law 
 should give due weight to the fact that the same principles of 
 reason and good sense which induced the Court of Exchequer 
 to decide against the servant in this the first action in which 
 it was attempted to hold a master liable for the results of a 
 fellow-servant's fault have commended themselves to the 
 minds of the learned Judges in this country and America 
 down to the present day. 
 
 There is great danger, amid the present clamour by a 
 section of the community against the supposed injustice of the 
 existing rule, that legislation should result which will bo 
 injurious not only to the community, but even to the true 
 interests of workmen themselves. It seemed to be admitted 
 on all hands in Wednesday's debate that it is unjust that a 
 master should be liable even to a third party for injuries done 
 by a servant carefully selected and fit for his duties in the 
 performance of his work, as, for example, by a coachman, 
 experienced and usually careful, in running over a person 
 walking on the highway. Good sense or sound j)rinciple 
 would say that for fault (in the absence of contract to a 
 different effect) he alone who committed the fault shall bo 
 answerable. The law violates this sound principle in holding 
 otherwise. It cannot be justified on the principle qui facit 
 per alkim facit per se, because that princij^le ought to receive 
 effect only with reference to acts authorised expressly, or 
 which are the proper result of implied authority given. It 
 would be as reasonable to hold the master liable to the fine 
 or imprisonment which his coachman suffers for his fault in 
 reckless driving as it is to hold him responsible for the civil 
 consequences arising from the same fault. 
 
 ^ Fortunately, the learned Judges who have dealt with the 
 subject have prevented the same injustice from extending to 
 the many cases which arise out of the extensive relations of 
 life in which persons are brought together as employes, guests, 

 
 and the like ; and in declining to assign to tlie term common 
 employment any narrow limits they have only shown their 
 sense of the injustice which is done in holding any one, 
 whether an individual or a company, liable (apart from con- 
 tract expressly or necessarily undertaking such liability) for a 
 fault not his own, and which he had no power of preventing. 
 These decisions are entitled to respect, for they refused to 
 extend an unjust principle further than it had been previously 
 carried. Why should it be now carried further ? It is no 
 good reason that the law had unfortunately recognised 
 liability to third parties, for that reasoning would come to 
 this — We have injustice done in a large class of cases ; do 
 not seek to correct this, but extend the same injustice to a 
 larger class. 
 
 The truth is, the question now raised is whether 
 employers, in addition to giving employment and wages, are 
 to become insurers of their workmen against injury from the 
 fault of their fellow-workmen ? And that raises an inquiry 
 of very great importance in a manufacturing and commercial 
 community like this. If the law be altered, is it not plain 
 not only that a principle unjust in its effect is to be extended in 
 its operation, but that enterprise will be seriously checked — 
 at least in the direction of limiting the class of persons who 
 now engage in many undertakings in which labour is em- 
 ployed ? 
 
 It has not hitherto been suggested that where a captain 
 of a vessel selected with proper care has on some occasion 
 been guilty of negligence resulting in injury to the crew, or 
 in the crew being lost, the shipowner is liable in damages to 
 the persons injured, or to their families if they have perished. 
 But if legislation even to the limited effect recommended by 
 the Committee of the House be passed, a shipowner will be 
 under this liability in future, for there is no more distinct or 
 clear instance of a complete delegation of authority than by a 
 shipowner to his captain. What, then, will be the effect of 
 such a change of the law ? At present from every port of the 
 kingdom of any consequence many vessels employed both in 
 our coasting and foreign trade are sailed by owners of limited 
 means. If such ownership is henceforth to infer insurance of 
 the limbs and lives of the seamen resulting from each other's 
 fault, or even from the captain's fault, the present large class 
 of owners of limited means will be driven from the trade,^ for 
 it is impossible that many of them can face the responsibilities 
 which such a state of the law would involve. The result wiU 
 be injury, not merely to the community, by seriously embar- 
 rassing the trade of shipping with a great additional burden, 
 but to seamen themselves in limiting the class who are now 
 willing to be shipowners. The only remedy would appear to 
 be for each owner to correct the injustice of the law, which
 
 6 
 
 would hold him responsible for a fault which he could neither 
 foresee nor prevent, by contracting with each seaman em- 
 ployed that he shall not have any such new responsibility ; 
 and I cannot doubt that such contracts will be regularly 
 made. 
 
 Again, take the case of mining enterprise. At present 
 many persons of fair but limited incomes are developing this 
 branch ol industry by opening up and working collieries and 
 other mines in which workmen varying from two or three to 
 several hundreds are employed. They do so on the footing 
 of liabihty for personal fault only. If they do not exercise 
 due care in selecting their workmen, they are responsible for 
 the injuries caused by incompetent persons to their fellow- 
 servants ; but if they do exercise due care, they are not liable 
 for a servant's fault — in other words, they do not insure their 
 servants' limbs and lives against the results of a fellow- 
 servant's fault. If, unhappily, the law be changed — contrary 
 to the well-considered and dispassionate judgments of the 
 last 40 years, based as these judgments are on broad general 
 principles alike of reason and convenience — the owner of a 
 mine large or small will find himself subjected to a new 
 responsibility so weighty that in many instances he must 
 resolve to renounce such enterprises altogether. Men of 
 ordinary means cannot undertake such risks. In the recent 
 Blantyre colliery accident upwards of 300 miners lost their 
 lives in one pit. If, after a change in the law, such an 
 accident should occur through any act of neglect or fault of 
 a pit manager, however careful and skilful he had alsva3^s 
 been, the pit owner would find himself suddenly made 
 responsible for the maintenance of the widows and children 
 of several hundred persons — a pecuniary responsibihty the 
 very risk of which will be enough to drive many out of the 
 trade to seek other outlets for their capital. The result, 
 again, is not only injury to the community, but especially to 
 the workmen, who by pressing such claims will greatly limit 
 the number of those who can give them employment. And 
 what is true as regards shipping and mining enterprise holds 
 good in all other branches of industry in which the workman 
 is liable to injury in the course of his employment. 
 
 The present demand for legislation is not supported by 
 sound principle. There is, perhaps, room for the contention 
 that the law should be changed on the ground of expediency. 
 I am more than doubtful, however, whether any change can 
 be expedient which violates principle. It would be well that 
 our legislators should take care that a natural and laudable 
 sympathy for persons injured and suifering, or persons 
 bereaved by sudden and calamitous misfortune should not 
 lead them into a false line of legislation fraught with 
 unfortunate results to the country, and even to workmen 
 themselves, to an extent not easily foreseen. The considera-
 
 tions to whicli I have referred are sufficient at least to show 
 that even on the ground of expediency it is not so clear as 
 many after a partial consideration of the case seem to think 
 that the law would be altered as proposed. 
 
 The subject deserves and requires much more thorough 
 consideration and examination than it has yet reached in any 
 debate in the House of Commons, and the issues ought to be 
 determined not on considerations of philanthropy, but on 
 general considerations of reason and of social and political 
 economy. Any change introduced must conflict with well- 
 considered judicial opinions of great weight and oft repeated, 
 and the country should be satisfied by conclusive reasoning 
 that this impartial authority has proceeded on unsound or 
 mistaken views before any change is made. Certainly no one 
 who listened to the debate of Wednesday could possibly think 
 that any such reasoning was supplied by any or all of tho 
 speakers who supported the measure before the House. The 
 deliberate judgments of learned Judges of high reputation, 
 embodying the law as it has been matured throughout many 
 years, cannot be brushed aside by general sweeping and, in 
 my view, incorrect assertions, such as those made by Mr. 
 Lowe and already quoted. 
 
 Notwithstanding the report of the Committee and the 
 recommendation that masters should be held liable for the 
 fault of a general representative (including necessarily such 
 an officer as the captain of a ship), I venture to question the 
 propriety of legislation even to that limited effect. It will be 
 found so difficult .as to be, perhaps, impracticable to define 
 the term " general representative "or " deputy master." It 
 is difficult, to begin with, to know what is in fact meant to 
 be covered by such a term, as, for example, in the case of a 
 work in departments, the head over all, or the head of each 
 department, or the foreman of sub -departments ; and any 
 term or terms that may be used in a statute, however carefully 
 framed, will certainly produce a large crop of future 
 litigations. If that difficulty can be met, the proposed 
 legislation is still open to the objection that it violates sound 
 principle. The distress and sufiering which result from those 
 accidents which must from time to time occur to workmen in 
 perilous occupations would be more reasonably provided for 
 by a system of insurance against accident. Were the great 
 bodies of workmen throughout the land to lay aside a trifling 
 part of their weekly wages and apply it in payment of 
 premiums limited to insurance against accident, it would be 
 found that insurance companies could pay to the small number 
 who meet with accidents such a sum as would enable them or 
 their families to meet their future wants, at least to a 
 considerable extent. It is only reasonable and consistent 
 with all experience to assume that labour attended with peril
 
 is paid for at a higher rate than work of a safe description ; 
 and it is, further, only reasonable that the payment on this 
 account should be used to provide for the contingency in 
 respect of which it is made. Would it not, then, be wiser and 
 better in the end to use all possible influence to induce 
 working men thus to provide against the results of accident, 
 rather than to enter on a new line of legislation which must 
 run counter to well-considered judicial authority and, what is 
 of greater consequence, to that principle of justice that no 
 one shall be held responsible for the fault of another unless 
 he shall contract otherwise— a principle which, happily, is 
 violated now in one class of cases only. 
 
 Experience at the Bar, and now for some years on the 
 Bench, in cases of compensation against masters for injuries 
 sustained by their workmen, has led me to take much interest 
 in this subject, and the importance of the great interests 
 involved will, I trust, be accepted as a sufficient justification 
 of the length of this communication. 
 
 I am, sir, your faithful servant, 
 
 A JUDGE OF THE SUPEEME COURTS 
 IN SCOTLAND. 
 
 London, April 12. 
 
 {From The Times.) 
 
 Mr. Macdonald need not be afraid that we shall hear 
 no more of the question of the liability of employers for injuries 
 suffered by their workmen. Lord Delawarr raised it again on 
 Tuesday in the House of Lords by asking whether the Govern- 
 ment proposed to bring in a Bill on the subject following the 
 recommendations of the Select Committee of the House of 
 Commons. It was only an inquiry, but it drew from the Lord 
 Steward a repetition of the statement that the Attorney- 
 General would introduce a Bill on the subject in the course of 
 the Session. There are other signs that the question is 
 attracting attention. We publish to-day a letter from a 
 learned Scottish Judge discussing the whole matter, and it is 
 not the less worthy of attention because the writer demurs to 
 the expediency of any alteration in the existing law. Our 
 correspondent is wholly opposed to Mr. Macdonald' s sweeping 
 project of legislation ; and, though he is less positive in his 
 condemnation of the recommendations of the Select Committee, 
 he looks with no favour upon them also. In the course of his 
 experience at the Bar, and since for some years on the Bench, 
 cases of claims for compensation against masters for injuries 
 sustained by their workmen have often come before him. The 
 arguments of one thus qualified by ability and special training 
 to discuss the question deserve respectful consideration.
 
 9 
 
 Our correspondent criticises Mr. Lowe for having said tliat 
 the whole of the present law of '^ common employment" 
 orig^inated in 1838, and had since been developed bit by bit as 
 cases arose compelling the Judge to excogitate it. Our readers 
 know that under the plea of ''common employment" an 
 employer is not held liable for injuries done to a servant, 
 through the negligence of a fellow -servant. In 1838 Lord 
 Abinger delivered a judgment in the Court of Exchequer 
 exonerating a master from liability to a servant who had been 
 injured by his fellow- servant's negligence, and Lord Abinger 
 then said '' the Court had to decide the question upon ''general 
 principles.-^' The case had never before arisen of a servant 
 bringing an action against his master, and when it was raised 
 the Court had to consider how it should be met. The doctrine 
 of " common employment" was then first laid down in 
 exoneration of masters. It appears to us that this sufficiently 
 justifies Mr. Lowe's statement. Whether the decision was or 
 was not out of harmony with previously received legal 
 doctrines is an entirely different question, on which opposite 
 opinions may be held. In giving evidence before the 
 Select Committee, Lord Justice Brett described the release of 
 an employer from liability to his servant to be a bad exception 
 to a bad law, and authorities of equal weight can be quoted 
 in support of the same opinion. On the other hand, the late 
 Lord Chief Baron Pollock once testified that he had under- 
 stood the plea of " common employment" to be a good answer 
 to a claim long before the case decided before Lord Abinger. 
 It was, however, in 1838 that the exemption from liability 
 arising from the fact of " common employment" first received 
 judicial recognition, and it is indisputable, as an historical 
 fact, that the doctrine has since been developed by the Judges 
 according to the necessities of the cases brought before them. 
 We do not say that more recent decisions have not been 
 logically evolved from the first ; we are content to note that 
 they have been worked out by successive Judges dealing with 
 successive cases. 
 
 It is expedient that an employer should be free from 
 liability for the injuries of a servant caused by the negligence 
 of a feUow-servant in all cases. If he should be liable in any 
 cases, what are those cases, and under what limitations should 
 liability arise ? It must be observed, to prevent misconception, 
 that the employer is liable under the existing law if the injury 
 can be traced to his negligence, as for example, if he employs 
 servants not qualified for the duties allotted to them, or 
 furnishes them with insufficient or improper instruments of 
 labour. We have, in fact, to discuss the question of liability 
 in those cases only in which the employer is himself absolutely 
 free from blame. It may be asked, why should an absolutely 
 blameless employer be subjected to any liability? Before 
 answering this it is well to observe what the principle con-
 
 10 
 
 veyed in tlie question covers. A gentleman most carefully 
 chooses Ms coachman, and never has occasion to distrust him; 
 but some day the coachman goes out and, being a fallible 
 mortal, drives against the brougham of another gentleman. 
 According to the present law the employer is liable, though 
 himself wholly blameless. Take a case of wider application. 
 A railway company selects its guards, drivers, and pointsmen 
 with scrupulous care, but one of its employes is negligent for a 
 couple of minutes, and there is an accident, with much injury 
 to life and limb. The company is liable, although the accident 
 was due to a pointsman most carefully selected and overseen. 
 We do not believe that anyone would propose to exonerate 
 the company from liability in such a case, and one reason for 
 upholding the law fixing them with it is that we have 
 guarantees of carefulness in making them responsible not to 
 be obtained if the law were otherwise ; and the balance of 
 expediency is thus in favour of maintaining the law. The 
 suggestion that it is unjust to make a company responsible for 
 the negligence of its servants is met by the answer that the 
 sufferers would otherwise sustain injuries, from an accident ex 
 hypothesi preventable, without any real redress. As the ques- 
 tion lies between the travelling public and the railway 
 companies upon whom the effect of the negligence of the 
 servants of the latter should fall, there can be little hesitation 
 in fastening it upon the companies. They can exercise a 
 supervision which travellers cannot enforce, and they can and 
 do recoup themselves for the burden thus thrown upon them. 
 An attempt is sometimes made to base the liability of railway 
 companies to travellers in respect of preventable accidents upon 
 an implied contract on the part of the companies to carry 
 travellers safely, but if the relations between the two were 
 simply those of contract, it would be possible for the railway 
 companies to contract themselves out of all responsibility. The 
 law really rests on the sound principle of expediency, which 
 makes the safe carriage of passengers a duty on the part of 
 the companies, and visits upon the companies all defaults of 
 any of their servants. 
 
 In a railway accident which might have been prevented 
 the passengers injured and the representatives of those killed 
 have claims against the company. It does, however, happen 
 in almost every accident that some servants of the company, 
 who were as little in fault as any passenger, suffer injuries or 
 death, and the real question for the Legislature is whether 
 the company should be excused from responsibility to them 
 on the ground that the accident was caused by the negligence 
 of a fellow-servant. The case is often presented on behalf of 
 railway servants as if their situation was different from that 
 of any other class ef employes ; but there is, in truth, nothing 
 to distinguish it. If we concede to them a right of action 
 against their employers, it must b© allowed to the workmen in
 
 11 
 
 every factory and mine, and even, as our correspondent 
 suggests, to the sailors on board every ship. Our correspondent 
 endeavours with much success, to magnify the terrors of these 
 consequences. Industry will languish, enterprise will cease, 
 and in obtaining an empty claim for compensation in case of 
 accidents workmen will lose the market for their labour. 
 ''Men of ordinary means could not undertake the risks to 
 '* which they would be exposed. Their peculiar responsibility 
 " would drive many out of trade to seek other outlets for their 
 " capital." It may be suggested that similar risks will follow 
 them in whatever industrial enterprise they may engage ; but 
 the question must be solved by those stricter ** considerations 
 of reason and of social and political economy" to which our 
 correspondent refers. It is inexpedient that a preventable 
 injury should be suffered by any one without making some 
 part of its consequences at least recoil upon the author of it, 
 and upon those who had and exercised authority and super- 
 vision over its author. It is through the application of this 
 principle that we have the best security that such accidents 
 shall be reduced to the smallest possible number. But we 
 must not lose sight of the fact that when two persons are 
 working side by side in the same gang and at the same task 
 each can exercise supervision over the other and is able to 
 make it effectual. It is, of course, still more emphatically 
 true that a gang-master has authority over those under him. 
 It would, therefore, seem that the principle of the claim of a 
 workman to compensation for injury is limited or fails alto- 
 gether where the injury is occasioned by a man working by 
 his side or under his] own superintendence ; and it fails be- 
 cause in such a case there is at least a suspicion of contributory 
 negligence, and to allow the claim would destroy the very 
 object of admitting it in the general case — the maintenance 
 of vigilance. The injured workman's claim would thus 
 prevail except where the negligent workman causing the 
 injury was working side by side with him, or under his 
 supervision, and we are disposed to think that if the recom- 
 mendation of the Select Committee had been fully elaborated 
 it would have led to this conclusion. Difficulties of determining 
 the relative position of the injured and the negligent work- 
 men may be anticipated, but they would not prove formidable 
 for a Judge and jury, and it is noteworthy that the cases of 
 hardship brought before the Select Committee by the repre- 
 sentatives of the working classes would all be solved by the 
 principle we have suggested. 
 
 In the draught report drawn up by Mr. Lowe and rejected 
 by the majority of the Committee, it was suggested that "the 
 funds of every industrial undertaking" should be made liable 
 to claims for compensation by injured workmen In the case 
 of a joint stock association these funds might be easily 
 identified, but it is not at once apparent what the phrasu
 
 12 
 
 would include in the case of an ordinary partnership. At the 
 same time much might be said in support of a proposition to 
 limit the accident fund of any undertaking, if any working 
 limitation could be suggested. We know that in the case of 
 accidents at sea the Legislature has laid down a certain 
 rate on the tonnage of the ship found in default, and the 
 principal might be made of wider application. For the 
 present, however, we must leave it to the ingenuity of the 
 Attorney General to frame provisions embodying it, if it 
 recommends itself to his adoption. That Law Officer will not 
 have an easy task in di'awing the Bill, which, according to his 
 promise, since confirmed by Lord Beauchamp, must be laid 
 before the House of Commons after Easter, and the difficulty 
 he has had in bringing in the BiU codifying the law relating 
 to indictable offences may prepare us for some delay in the 
 appearance of an Employers' Liability for Injuries Bill. 
 
 Feidat, Apeil 19th, 1878. 
 
 To THE EdITOE of THE *' TiMES." 
 
 SiE, — At the request of the Attorney- General and in 
 order to give him the opportunity of stating his views, I con- 
 densed what I had to say on the Employers' Liability Bill 
 into the modest time of five minutes — a courtesy which the 
 Government acknowledged by suffering the Bill to be counted 
 out by a member sitting close behind them, who seemed so 
 overpowered by the mission which he was discharging that he 
 was unable to do more than repeat the same thing over and 
 over again till he and we were alike released by the pointing 
 of the hand to a quarter to six.j 
 
 I now request permission to supply the reasoning which 
 I should have off'ered to the House if time had permitted. 
 The learned Judge who has done me the honour to notice 
 what I said in the House of Commons has based the present 
 state of the law on the case of "Priestly and Fowler" in 
 1837. In that case the decision is based on the inconvenience 
 and absurdity which it is said would result if the master were 
 made liable for the negligence of one servant towards another 
 as he is to strangers. 
 
 Now, had the case for depriving the workmen of their 
 remedy, as the learned Judge seems to think, rested on these 
 general considerations of j)ublic policy, whatever might be my 
 individual opinion, I should not venture to impugn it. When 
 a new case such as this arises, it is the duty of the Judges to 
 select out of the legal principles which make up the law of 
 England that principle which appears to them to be applicable 
 to the case. But every one knows that the doctrine of common 
 employment does not rest on any principle at all. The real 
 leading case in this subject is not '' Priestly and Fowler," but 
 " Hutcheson v. the York, Newcastle, and Berwick Hailway 
 Company," decided in 1850, for on the ground taken up in
 
 13 
 
 tliat case tlie law, as it exists at present, is based. It was an 
 action by a railway servant against the company for tbe 
 negligence of a fellow-servant, and it was beld that the action 
 would not lie, not on account of inconvenience and absurdity, 
 as in " Priestly and Fowler," but on the ground of contract. 
 These are the words which have been followed in almost all 
 the succeeding cases : — "■ Hutcheson knew when he engaged 
 in the service that he was exposed to the risk of injury, not 
 only from his own want of skill or care, but also for the want 
 of it from his own fellow-servant, and he must ie supposed to 
 have contracted on the terms that as between himself and his 
 master he would run this risk. This was a risk which 
 Hutcheson must be taken to have agreed to run when he 
 entered into the defendants' service." 
 
 Now, I have admitted that it is competent, and, indeed, 
 the duty, of the Judges to make in one sense new law — that 
 is, to apply old principles to new cases. But here they have 
 done nothing of the kind. Thej' lay down no new law, but 
 evolve out of their own minds a contract of which both parties 
 were entirely ignorant till they were informed of its existence 
 by the Judges. The law will imply contracts although not 
 expressed, such as what is called the custom of the country in 
 farm leases, though not mentioned, but that is on the ground 
 that both parties took the custom for granted. But I challenge 
 any one to point out a case where the law has saddled a 
 person with a contract which was never made by any one, 
 which was not in the minds of either of the parties, and which 
 is entirely its own creation. The law may no doubt annex 
 certain duties and liabilities to certain positions. But I 
 maintain that the Judges have no power by virtue of their 
 office to create false contracts, and then to enforce them as if 
 they were true. To do so is not to declare the law, but to 
 create false evidence by setting up a presumption of fact 
 which is notoriously untrue. 
 
 Observe also the admission which is implied in the state- 
 ment that people must be taken to have entered into contracts 
 to run the risk of the negligence of a fellow servant. It is an 
 admission that without such a contract the master would be 
 liable. If a contract does exist, it must be either as a pre- 
 sumption of law or of fact. It cannot be a presumption of 
 law, for the law will never presume anything notoriously 
 false, and it cannot be a presumption of fact, for a 
 presumption of fact, as Lord Tenterden says, is an 
 inference of fact from other facts that are known — an act of 
 reasoning. But here are no facts from which the contract 
 can be inferred. On the contrary, it is notoriously false ; and 
 what makes the position more unfortunate is that this is a 
 controversy between rich and poor, in which the sword of 
 Brennus has been thrown into the heavier scale. 
 
 I will now cite a few authorities. Lord Justice Bramwell
 
 Ik 
 
 says: — ''Now, tlie expression that is used is, I think, an 
 unfortunate one — that is to say, that the servant contracts that 
 he will make no claim against the master for injury done by 
 the negligence of a fellow servant. The obvious difficulty in 
 that mode of expressing it is that neither master nor servant 
 ever thinks of such a matter when they enter into the relation 
 of master and servant. And yet under this unfortunate mode 
 of expressing it a series of decisions have been made which 
 without their knowledge and on such grounds as these have, 
 after destroying the whole jurisprudence of Scotland on the 
 subject, ended in declaring that. a labourer who serves one 
 master is the fellow servant of a contractor who serves 
 another." 
 
 The Lord Justice thinks, however, that it would be rea- 
 sonable enough to say the master and servant establish a 
 relation between them of which one of the terms is not that 
 the master shall be liable for the negligence of a fellow 
 servant — that is to say, that in the opinion of this high 
 authority the principle upon which the Courts have been 
 proceeding for the last twenty-five years is entirely wrong, 
 and should be replaced by its contrary — that is, by assuming 
 that the master never was liable at all for the negligence of a 
 fellow servant, instead of the assumption that he was liable 
 and had got rid of his liability by contract. Provided the 
 end is attained, it seems to matter little by which of two 
 contrary courses it is reached. 
 
 I now come to Justice Brett. He says : — " No contract 
 can be implied by law, or no condition can be implied by law, 
 unless it be such that in the judgment of all reasonable men 
 it must have been in the contemplation of both parties at the 
 time the cotract was made." 
 
 I now come to Lord Cairns. He says in the case of 
 ''"Wilson and Merry," in the House of Lords, the master is 
 not and cannot be liable to his servant unless there be negli- 
 gence on the part of the master in that which he (the master) 
 has contracted or undertaken with his servant to do ; so that 
 here the ground on which all these cases which deprive the 
 workman of his remedy rest is once more emphatically denied. 
 I submit, therefore, that I am justified by authority and by 
 the reason of the thing in saying that the words " common 
 emploj^ment" had been extended as occasion required, and 
 that by supposing contracts which never existed the working 
 classes have been deprived of their right of compensation for 
 injuries. 
 
 I am. Sir, your obedient servant, 
 34, Lowndes-square, April 18. EOBEET LOWE. 
 
 To THE Editor of the " Times." 
 
 Sir, — A brief summary of the Civil Law on this subject 
 may be both interesting and useful to your readers.
 
 15 
 
 The doctrines of the law are beautifully explained by the 
 commentators, especially by Petrus Faber, on the title " De 
 Eegulis Juris," Law X., and by Voet, *'Ad Pendectas," 
 Lib. XIY., Tit. III., " De Institoria Actione." 
 
 Petrus Faber says, '^Quando dominus nihil deliquit, 
 factum servi obesse domino non debet." Here servus means 
 a slave, and if the master is not liable for the act of his 
 slave who is his property, a fortiori, he is not liable for the 
 act of a servant to whom he pays wages under an agreement 
 for a specified service. The slave, however, is personally 
 liable under a noxial action because some one must be liable ; 
 and as the slave is not a person, but property, he may be 
 forfeited. So the servant would be personally liable, but not 
 the master. This is sound law, for good sense prescribes that 
 for fault or tort, in the absence of contract to a different effect, 
 he who committed the fault should be alone liable. 
 
 We may now consider the exceptions to this law, which, 
 indeed, spring from the reason on which it is founded. They 
 arise from the principles of two laws, 10 and 149 " De Eegulis 
 Juris." -'Ex qua persona quis lucrum capit, ejus factum 
 prsestare debet." — IJlpian. '' Secundum naturam est, com- 
 moda cuj usque rei eum sequi quem sequentur incommoda." — 
 Paulus. The converse of this rule is a necessary consequence. — 
 Law 55, ^'ProSocia." 
 
 Hence the actio institoria. An institor is an agent intrusted 
 with some business. "Institor appellatus est quod negotio 
 gerendo instet." — Law Institor, 3, *' De Institoria Actione," 
 
 Yoet says, '' Ut institor contrahendo prsehonentem obligat, 
 ita et delinquendo in officio cui prtepositus est." He gives 
 several examples, one of which will suffice. If an apothecary 
 employs a person to superintend and do the business in the 
 shop, and that person, through negligence, sells poison instead 
 of medicine, the employer is liable to damages. So if the 
 agent wrongfully exceeds his authority or violates his prin- 
 cipal's directions in dealing with hond fide parties without 
 notice, within the limits of his business, the principal is liable 
 to them, and he has* his remedy against the agent. So if a 
 clerk in a bank cashes a forged cheque, the banker is liable. 
 
 The principal derives a profit in business from the services 
 of the institor, and therefore — *' ejus factum praestare debet." 
 Moreover, the principal holds out the institor to the public as 
 a man to be trusted within his employment. Here the 
 institor differs from a servant. So, if I engage a coachman, 
 I do not tell the public to trust him as a careful driver. But, 
 if I employ a clerk to collect debts, it is otherwise ; and if he 
 receives what is not due I am liable to refund even if the 
 money never reaches me ; and so, if he receives debts and 
 embezzles the money, the loss falls on the employer. 
 
 There is another principle — that as a man must not take
 
 16 
 
 advantage of his own wrong, so he must not take advantage 
 and profit by the wrong of another. So XJlpian says — 
 ^'Turpia lucra ab haeredibus extorquenda, licet crimina 
 extinguantur. — Law 5, '^ De Calum." 
 
 It is evident that the Employers' Liability for Injuries 
 Bill would extend the operation of a bad and unjust law. 
 The results would often be absurd. Thus, if a cook caused 
 the illness of a fellow servant eating of a dish, the master 
 would be liable ; and so he would be in like manner if a 
 housemaid gave a fellow servant a damp bed. 
 
 I remain, your obedient servant, 
 
 GEOEGE BOWYEE. 
 
 Monday, April 22nd, 1878. 
 To THB Editor of the "Times." 
 Sir, — The following sentence, which in my letter of the 
 18th inst., is by a typographical error attributed to Lord 
 Justice Bramwell, is not his but mine: — ''And yet under 
 this unfortunate mode of expressing it a series of decisions has 
 been made, which without their knowledge and on such 
 grounds as these, have, after destroying the whole juris- 
 prudence of Scotland on the suject, ended in declaring that a 
 labourer who serves one master is the fellow-servant of a 
 contractor who serves another," 
 
 Your obedient servant, 
 
 EOBEET LOWE. 
 34, Lowndes-square, S.W., April 19. 
 
 To THE Editor of the '^ Times." 
 
 Sir, — I, unfortunately, did not get down to the House of 
 Commons on Thursday, the 11th of April, in time to hear 
 the charges then made against the Government and myself 
 with reference to the part which I was supposed to have taken 
 in the debate the previous day on the Employers' Liability for 
 Injuries Bill. But later on in the evening, having been 
 informed of what had occurred in my absence I asked Sir 
 Stafford Northcote and Mr. Cross whether they did not think 
 that I ought myself to give some explanation. They both 
 told me that it was quite unnecessary for me to do so, that 
 the charges which had been made had been very satisfactorily 
 answered by Mr. Eodwell and most handsomely withdrawn 
 by Mr. Gladstone. I was, therefore, somewhat surprised to 
 find Mr. Lowe a week afterwards repeating these same charges 
 in his letter to The Times of April 19, more especially as I am 
 told that he was present in the House when the charges were 
 first made, answered, and withdrawn. In these circumstances 
 I trust that you will kindly grant me space in your columns 
 for a reply to Mr. Lowe.
 
 17 
 
 He charges me in Ms letter (not, indeed, by name, but 
 very unmistakably) in effect witb having undertaken ^' a 
 mission " from tbe Government, and with having discharged 
 it by taking out the bill. Making all due allowance for Mr. 
 Lowe's natural irritation at having been told in The Times of 
 the day before by '' a Judge of the Supreme Courts in Scot- 
 land," that his view of the law was quite wrong and that my 
 view was quite right, this charge — certainly so far as it affects 
 the Government — is, I think, hardly worthy of an ex- 
 Cabinet Minister, and as affecting either the Government or 
 myself is absolutely and entirely without any foundation 
 whatever. 
 
 The facts are simply these — I was a member of the Select 
 Committee on Employers' Liability for injuries to their 
 servants, and in the committee I moved the adoption of Sir 
 Henry Jackson's report, in opposition to Mr. Lowe's. When 
 Mr. Macdonald's Bill came on for second reading, on Wednes- 
 day, the 10th of April, I went down to the House prepared to 
 speak in favour of Mr. Tennant's amendment, that '' any 
 alteration in the law should be founded on that report." The 
 competition for pre-audience was brisk, especially among those 
 who were best entitled to be heard viz., " the employers," and 
 one member, Mr. Davies, the member for Cardigan, whose 
 views I should have much liked to hear, rose four times with- 
 out success to address the house. Twelve or thirteen mem- 
 members had spoken when Sir Henry Jackson rose, and after 
 he had most ably defended the report of the Select Committee 
 I thought it quite unnecessary for me to add anything, and 
 I so told Mr. Tennant and Mr. Eodwell and other 
 members who were prepared to speak. Mr. Lowe then spoke, 
 and for many more than the five minutes for which he takes 
 credit, and in the course of his speech said, as I understood 
 him, that the working men had been deprived by the Judges 
 of a right to compensation which they had at one time 
 possessed — meaning before the decision of ''Priestly v. 
 Fowler," in 1837. He had fully developed the same view in 
 his draft report which the Select Committee rejected. When 
 he sat down I instantly rose to correct what I thought, and 
 still assert, was a most mischievoug misstatement of the law, 
 but the Speaker called on the Attorney-General, and when he 
 sat down I rose again, but Mr. Forster was called on. I then 
 rose a third time, but Mr. Meldon was called on, and when 
 he had concluded I endeavoured to obtain a hearing. But it 
 was getting late, and owing to the persistent interruption (I 
 thought them unmannerly) of some members below the gang- 
 way (who I suppose wanted to have the Bill thrown out, as 
 it certainly would have been on a division) I was unable 
 to conclude the very few observations which I wished to make 
 before the sitting came to a close. I deny emphatically, and 
 with some indignation, that I had undertaken any such
 
 18 
 
 ''mission" as Mr. Lowe attributes to me or any " mission" 
 at all, or tliat I had any intention whatever when I rose to 
 speak of what is called "■ talking the Bill out." Mr. Gladstone 
 stigmatised such conduct as Mr. Lowe imputes to me 
 as "odious." Whether that be the appropriate epithet 
 or not, I repudiate the conduct. If I may be allowed to use 
 a familiar phrase, " It is not in my line." 
 
 I am, Sir, yours faithfully, 
 
 J. E. BULWEE. 
 11, King's Bench-walk, April 20. 
 
 Wednesday, April 24th, 1878. 
 To THE Editor of the " Times." 
 Sir, — I have been engaged for nearly half a century in 
 the practice and administration of the law. I entirely agree 
 with the ''Judge of the Supreme Courts in Scotland" that 
 the proposed extension of the liability of a master for the 
 negligence of a servant, causing damage to a fellow servant', 
 is uncalled-for and mischievous. When it is proposed to 
 alter a law, it matters little how it came into existence. The 
 question is whether the alteration is expedient. Mr. Lowe 
 finds fault with the origin of the present law, He, however, 
 must know very well that many a case has been rightly 
 decided and a principle established, though there may be a 
 doubtful reason among those given for the conclusion. The 
 cases he refers to, if stated at length, would have a very 
 different aspect from that which he ^ives them, and would 
 justify the negative opinion that " the master and servant 
 have not contracted that the master should be liable for a 
 fellow servant's negligence." I am surprised he should use 
 such an expression as that " provided the end is obtained, it 
 seems to matter little by which of two contrary courses it is 
 reached." The courses are not contrary, and there is no 
 pretence for the imputation suggested. The question is of 
 the greatest importance, and I request your permission to 
 offer some remarks on it. 
 
 The fundamental error of those who support the pro- 
 posed change is to assume that there is some general law or 
 natural right that everybody who is hurt by the negligence 
 of a servant acting in his employment shall have a remedy 
 against the master ; that in the nature of things masters are 
 to make good the damage done by servants, and that the law 
 which makes them not liable to a fellow servant is an unjust 
 exception to the general law. There is no such general 
 law. A master is liable for the negligence of a 
 servant in two classes of cases — 1st, where there is 
 no contract or relation between the person injured 
 and the master ; 2nd, where there is such contract or relation. 
 In the former class are included such cases as one of the
 
 19 
 
 public being injured by the negligent driving of a master's 
 coachman. How this originated is not material. Some 
 reason or justification for it may be found in this — that it has 
 a tendency to insure care in the selection of the servant to 
 whom the means of doing mischief are intrusted. If it 
 should be said that for that purpose it would be enough if the 
 master were only made liable where he had not been careful 
 in the choice of the servant, the person injured might say, 
 ''I cannot prove that. Let us judge by the result. I had 
 no choice in the matter. Unless I gave up my right to use 
 the streets, I could not help running the risk of your coach- 
 man's negligence. Let us insure carefulness in master and 
 coachman by making the former liable for the latter." 
 Whether this is right I do not say, but it is a reason. The 
 case of the servant, however, does not come under this head. 
 He is not merely one of the public — a relation or contract has 
 been established between him and his master, and the case is 
 within the second class. This, again, must be subdivided. 
 Wherever a man undertakes anything, unless he stij)ulates to 
 the contrary, he undertakes that it shall be done with due 
 care and skill. If he does it himself, and fails in care or skill 
 to the damage of the person he has contracted with, he is 
 liable. If he gets some one to do it for him, and that person, 
 whether servant or not, fails in care or skill, the original 
 contractor is — and in all reason is — liable. If A Qontracts to 
 convey me in a carriage, and I am hurt by his negligence or 
 that of his servant, or that of another coach proprietor whom 
 A procures to carry me, A is liable to me. If I take a ticket 
 from Dover to Liverpool and am injured by negligence at the 
 Liverpool station, the Dover Eailway Company would be 
 liable to me. The principle of this law is, that a man cannot 
 get rid of his liability by deputing to another, servant or 
 otherwise, the duty which he has undertaken. These are the 
 cases, and the only cases I know, where the master is liable 
 for the servant's negligence. The servant's case is not within 
 this class. The master has not undertaken to him to do any- 
 thing, and do it carefully, like carrying him, shoeing his 
 horse, conducting his law suit, and so forth. Yet there is a 
 relation between them, created by mutual consent. At present 
 it is not one of its terms that the master should be liable for 
 damage occasioned by the negligence of a fellow servant. It 
 is proposed to alter this and make the master liable, unless 
 the servant does what is called contract himself out of it. I 
 believe he will be allowed to do that. Why is the^^master to 
 be liable ? The burden of proof is on those who would alter 
 the law. Why should A, who has done no wrong, who has 
 been careful and just, make good to B the"[damage done by 
 C ? The reason given in the case of a claim by one of the 
 public does not apply. It is open to the servant to enter 
 the service and work with the fellow workman or not as he 
 pleases. He can q^uit the service. He has more knowledge
 
 20 
 
 than the master of his fellow servant's mode of doing his 
 work ; he can best guard against it if wrong. Why, in the 
 name of all fairness and reason, should the master be liable ? 
 In my judgment a great deal more could be said in favour of 
 making a servant liable for damage done to a master's pro- 
 perty by the negligence of a fellow servant. Any one with 
 any experience knows the recklessness, not merely of work- 
 men, but of all undisciplined minds. I do not suppose that 
 a man will risk his life or limb because his widow or he will 
 have a remedy, but I think it as well to give him as little 
 encouragement that way as possible. Another thing — every 
 one knows that it is a point of honour, a very false one, 
 among servants not to disclose each other's delinquencies. 
 Are they to conceal them, and when injured in consequence 
 have a remedy against the master ? Of course it will be said 
 that all this will be provided for, and that only such cases 
 will be within the new law as those where, though there is a 
 common employment, the two employments are unconnected. 
 I repeat my question, why should the master be liable, what 
 has he done wrong ? The only real answer is that he can 
 pay, and the fellow servant cannot. This is a parry to the 
 " sword of Brennus." Fie, Mr. Lowe ! 
 
 This reasoning is not limited to the case of fellow servants. 
 If a man is a guest at a friend's house, the master is not 
 liable for his servant's negligence damaging the guest. The 
 guest is not merely one of the public. There is a relation 
 between him and his host, and it is not one of the terms of 
 it that the host shall be liable for his servant's negligence. 
 Other instances might be given — a gratuitous lift of a pedes- 
 trian in a carriage, and others. 
 
 I have said I believe it is intended to allow the servant 
 to contract that the master should not be liable. If not, the 
 legislation will sin against that liberty of contract which is all 
 important. If it is so intended, the mischief will be limited 
 to those cases in which the master has not guarded against it 
 by express bargain. It is said that the non-liability of a 
 master for the negligence of a servant injuring a fellow 
 servant is a bad exception to a bad rule. I think I have 
 shown it is no exception to any rule. But, supposing it is, 
 would the law be improved by extending a bad rule to a case 
 at present not within it ? 
 
 G. B. 
 
 {From the Times.) 
 
 Wednesday, April 24th, 1878. 
 
 Mr. Bulwer's letter of Monday shows some natural indig- 
 nation at the charge Mr. Lowe brought against him on 
 Friday last of having undertaken a mission from the Govern- 
 ment to talk out Mr. Macdonald's Bill for establishing the 
 liability of employers to their workmen. On the face of it
 
 21 
 
 Mr. Lowe's accusation was not very plausible. The feeling of 
 the House is not of a kind to encourage the beKef that a 
 proposition so unqualified as Mr. Macdonald's had any chance 
 of being accepted in the teeth of the amendment moved by 
 the member for Leeds. The Grovernment scarcely needed 
 against it such a manoeuvre as Mr. Lowe imputes to Mr. 
 Bulwer. But the question of Mr. Bulwer's motives for talking 
 out, as in fact he did, Mr. Macdonald's Bill is altogether of 
 subordinate interest to the important controversy the Bill itself 
 raised. Much of Mr. Lowe's attack on the law as now under- 
 stood is equally beside the real point. Mr. Lowe argues that 
 the judicial exemption of employers from liability to compen- 
 sate servants injured by their fellows originated in an implied 
 contract by which Judges chose to assume that persons in a 
 common employment have agreed to run the risk of iU effects 
 from each other's carelessness. The first case in which the 
 present state of the law was enunciated put the protection of 
 masters on this basis, and it was only the ingenuity of later 
 Judges which has rested it on the more tenable ground of the 
 inconvenience and absurdity a contrary view would entail. 
 Mr. Lowe shows how Judges, such as Lords Justices Bramwell 
 and Brett, in whom the element of common sense is even 
 more remarkable than their great legal knowledge, have been 
 at pains to repudiate the fiction of a contract of which certainly 
 neither master nor man can ever have had the most slender 
 suspicion. It has been equally repudiated by Lord Cairns. 
 Both he and Lord Justice Bramwell uphold the present law 
 as firmly as they who first laid it down ; but they put it on 
 precisely the converse principle to the decision of 1850. That 
 decision discovered that workmen have contracted themselves 
 out of the law, which would otherwise have given them the 
 same rights against their employer for a fellow-servant's 
 recklessness as the public have against him. But Lord 
 Justice Bramwell and Lord Cairns assert that the master is 
 free from liability to his servant, not because the servant has 
 contracted with his master that the master shall not be liable 
 but because the master has not contracted with his servant 
 that he shall be. The Courts, Mr. Lowe sums up, which had, 
 in effect, exempted the master originally from liability in 
 virtue of one theory, now hold that theory to have been a 
 delusion, and continue the master's exemption on the ground 
 of a theory wholly different, if not contradictory. Mr. Lowe 
 seems to assume very complacently that when he has proved 
 two hypotheses to be opposed he has confuted both. We do 
 not think this quite follows. At all events, as '* Q-. B. " 
 argues with great force this morning, it is a very bold leap 
 from the demonstration of discrepancies in the reasoning by 
 which Judges have supported their rulings of law to the 
 conclusion that the working classes would now have a claim on 
 masters for injuries suffered at the hands of fellow- workmen 
 but for the ingenuity of the Judges who decided Hutcheson's 
 case in discovering a contract which never existed.
 
 22 
 
 The obvious objection of the state of the law Mr. Lowe 
 assumes to have prevailed, not in Scotland merely, but in 
 England, prior to 1850 is that he cannot adduce earlier deci- 
 sions by English Judges in favour of his view any more than 
 can his opponents against it. He may rej)ly that he rests his 
 case on the recognised law, and that it is for those who claim 
 exemption for masters from the general rule that they are 
 liable for the acts of their servants to prove the claim. In 
 any case it must seem suspicious that, if the common law were 
 in England what Mr. Lowe supposes it to have been, he should 
 be unable to find precedents for his view. Injuries must 
 have been done by servants to fellow-servants from the begin- 
 ning of time, and some sufi'erers, it might be imagined, would 
 have been sufiiciently litigious to seek compensation. But, in 
 fact, the rule making employers responsible for those they 
 employ is not quite of the general character Mr. Lowe's 
 argument implies. It is, as our correspondent, ** Gr. B.," 
 shows, itself an exception to the really general law that men 
 are answerable for their own doings, and those alone. When 
 one suffers damage there is an oIdvIous inconvenience, and 
 sometimes even inj astice, in allowing a master to plead that 
 it is not his act, but the act of some unknown or practically 
 irresponsible person in his employment. Consequently, the 
 law presumes that, so far as regards third persons, a master 
 and his servants are one person. That, if anything, is the 
 legal fiction. "Where the injury has been done by a servant 
 to a fellow-servant the reason of the exception by which a 
 man is made to give compensation for an act not his own 
 ceases. The author of the injury is perfectly well known, 
 and his ability to make amends for the damage he has in- 
 flicted on one in the same condition of life is probably not 
 inadequate. If the injured servant, or he who has done the 
 injury, can show that the master is in fault through having 
 provided bad machinery or inefficient supervision, he 
 is free to prove it ; but the burden of proof is properly cast 
 upon him. Mr. Lowe puts it that, " by supposing contracts 
 "which never existed" on the part of the workmen to free 
 the master from liability for the carelessness of other work- 
 men, ' ' the working classes have been deprived of their right of 
 " compensation for injuries." On the contrary, the real hard- 
 ship would have been in supposing a contract which never 
 existed on the part of the master to saddle himself with the 
 obligation to insure his workmen against the carelessness of 
 their companions. The Attorney-General himself appears to 
 have been led astray by the arguments of those who are pain- 
 fully impressed with the unfairness of refusing to make a 
 master answerable to a servant whose leg has been broken by 
 the carelessness of a fellow-servant in leaving a coal-scuttle 
 on the stairs, while leaving the master answerable to a 
 stranger. Sir John Holker is of opinion that, by exempting 
 employers from liability to strangers for the acts of their
 
 23 
 
 servants, unless when they can be directly traced to the 
 master's own negligence, the ground would be cut away from 
 under the feet of the workman's champions. ''In that case 
 "the workmen would have no grievance left," for ''they 
 "com^Dlained now," said Sir John, " not because they were 
 "dealt with unjustly, but because they were dealt with 
 "differently from the general public." The workman and 
 his friends would have a right to deny that such a mode of 
 "levelling down" would leave them without a grievance. 
 The remedy proposed by Mr. Macdonald's Bill would have 
 shifted the balance very unfairly against employers ; but, as 
 almost every speaker allowed, a workman has a substantial 
 grievance in being debarred from demanding compensation 
 from employers who delegate their authority to managers and 
 superintendents The injustice to the public of such a tahula 
 rasa as the Attorney-General foreshadowed would be yet 
 greater than to the workman. The present law, which con- 
 siders masters and men one as regards third persons, requires 
 modification in practice, but the principle is equitable. To 
 cut the knot of the claim raised by workmen against their 
 masters by depriving the public of their present security for 
 watchful supervision by employers of those they employ 
 would cause many injustices for the sake of evading one 
 embarrassment. 
 
 The Attorney-General, however, was very ^careful to 
 explain that he had no intention of initiating any revolutionary 
 legislation. Still, the measure he sketched to the House on 
 the 10th of this month ought, if the promise be kept, to satisfy 
 all but partisan expectations. If " masters be made respon- 
 " sible for injuries caused by the negligence of servants to 
 " whom practically the duties of master are delegated," if the 
 meaning of the term " common employment " be modified " so 
 " as to distinguish between workmen employed in perfectly 
 " separate and distinct branches of employment," and if the 
 law as to " contributory negligence" be explained, workmen 
 will have little ground left for complaint, and the public will 
 keep its present protection against a conspiracy of masters and 
 men to be reckless of the danger the latter may cause to the 
 lives and limbs of third persons. We can hardly promise Mr. 
 Lowe that even then Judges may not justify their application 
 of the law by arguments which will not satisfy his logical intel- 
 lect. But judgments are, happily, not always wrong because 
 their grounds will not bear subtle analysis. As " G. B." tells 
 us, "many a case has been rightly decided, and a principle 
 " established, though there may be a doubtful reason among 
 "those given for the conclusion." It is not Colonial Courts 
 alone which would be the better for remembering sometimes 
 Lord Mansfield's advice to follow the suggestions of common 
 sense and beware of assigning reasons.
 
 24 
 
 Thursday, April 25th, 1878. 
 
 To THE Editor of the '^ Times." 
 
 Sir, — Your correspondent *' G. B." says, — ''lam sur- 
 prised lie should use such an expression as that ' provided 
 the end is obtained, it seems to matter little by which of the 
 two contrary courses it is reached.' The courses are not con- 
 trary, and there is no pretence for the imputation suggested." 
 I cited one case, that of Hutcheson against the York, &c., 
 Railway Company, and could, if necessary, cite a dozen more 
 where the master has been held not to be liable for injury 
 done to a fellow-servant, on the ground that the servant must be 
 taken to have contracted with the master to run the risk. This 
 implies that in the absence of contract the master is liable. 
 *' (i. B." says he never was liable. No contradiction can be 
 more complete. But though the two views are diametrically 
 contrary they agree in this — that they exclude the workman 
 from his remedy. The Courts have held that the master was 
 liable and was not, on the same state of facts, but always 
 have refused the remedy. 
 
 This is something more than " giving a doubtful reason 
 for the conclusion." 
 
 Your obedient servant, 
 
 EOBEET LOWE. 
 34, Lowndes-square, April 24. 
 
 Fridat, April 26th, 1878. 
 
 To THE Editor of the "Times." 
 
 Sir, — Lord Mansfield's advice — to follow common sense and 
 abstain from assigning reasons — was prudent. But the 
 question must arise in each case. What is common sense ? 
 Lord Norbury once refused to give a reason, saying, " Many 
 a good judgment has been spoilt by a bad reason." But still 
 every good judgment must be based on a good reason. Now 
 let us consider the reason given by Lord Cairns and Lord 
 Justice Bramwell. They assert that the master is free from 
 liability to his servant, not because the servant has contracted 
 with his master that the master shall not be liable (according 
 to the fiction held by the Judges in 1850), but because the 
 master has not contracted with the servant that he, the master, 
 shall be liable. Now, let us suppose this practical case : A 
 servant is injured by a fellow-servant in the course of his 
 employment. The injured man says to his master, "You are 
 liable for the injury I have suffered by the act of my fellow- 
 servant." The master answers — " No ; when I took you into 
 my service I did not contract to make myself liable for injuries 
 which you might receive from your fellow-servants in the 
 course of their duties." The servant replies — " Sir, I admit 
 that no such contract exists between us ; but if your servant, 
 instead of injuring me, his fellow-servant, had injured a
 
 25 
 
 strang^er, you would be liable to that stranger, and why 
 should I be dealt with differently ; why should I be deprived 
 ol my remedy against you merely because the man who 
 injured me is in your employment?" What principle of 
 justice or common sense is there to answer this question ? If 
 the master is prudent he will follow the advice of Lord 
 Mansfield and Lord Norbury and give no reason, but say that 
 Lord Cairns and Lord Justice Bramwell have so decided. Or 
 the master may fall back on the fiction and say, '^ When you 
 entered my service you tacitly agreed to take the risk, so far 
 as your employer is concerned, of any injury you might receive 
 in your employment from any of your fellow-servants," and I 
 think, after all, the fiction is the better reason of the two. 
 For the former reason assumes, begging the question, that 
 the master cannot be liable unless he agrees with his servants 
 and consents to be liable. But this is the very question in 
 dispute. Mr. Lowe is right in his contention that, assuming 
 that the master is generally liable for injuries done by his 
 servant in the course of his duties, there ought to be no 
 exception to the rule in case the injury is done to a fellow- 
 servant. And he is right that in '' Hutcheson's case " the 
 Judges invented a fiction to support that exception. 
 
 In truth, the reason of Lord Cairns and Lord Justice 
 Bramwell is a fiction as well as the other reason. It is the 
 fiction that the employer cannot be liable unless he has agreed 
 with his servant to be liable and that the serva:|jt accepted 
 these terms. Of the two fictions I prefer the fiction in 
 ^' Hutcheson's case," because it has a certain colour, whereas 
 the other has none. Alciatus and Menochius say — " Fictio 
 juris est legis adversas veritatem in repossihili exjusta causa dis- 
 position The fiction must be just, it must be ex justa causa. 
 A fiction must not work injustice. Bentham complained of 
 Judge-made law. But three-fourths of our law is Judge- 
 made ; and the Judges make and unmake it. At the present 
 time the law on Monday morning is whatever the Judges have 
 decided, or even said, on Saturday afternoon. A lawyer's 
 opinion goes for what it is worth. But put a peculiar wig 
 and gown on him, and pay him £5,000 or £6,000 a year, and 
 he becomes, not merely a judge in the cases that come before 
 him, but an oracle and a law-giver. And a legal argument 
 turns, not on principles of justice, common sense, or legal 
 doctrine, but on the question what was the meaning of the 
 language of Mr. Justice A. or Vice-Chancellor B. in a par- 
 ticular case, or what is the effect of the dicta of Lord D. or 
 Lord Justice E. And now Parliament is called upon to alter 
 Judge-made law. 
 
 I will not trespass by referring to the civil law, which I 
 explained in my former letter, but I am prepared to show its 
 good sense and justice. 
 
 Your obedient servant, 
 
 aEOEGE BOWYER.
 
 26 
 
 Sattjrday, 27th April, 1878. 
 
 To THE Editor of the " Times." 
 
 Sir, — Mr. Lowe has applied himself to exposing the 
 inconsistencies of the reasons on which the exemption of the 
 emploj^er from liability for injuries to his servants caused by 
 negligence of other servants of his in the course of their 
 employment is based. " G. B." has endeavoured to show that 
 this is not an exception from any general liability of employers 
 for injuries caused by the negligence of their servants apart 
 from contract, but that where there is no contract there is no 
 such general liability, and that, therefore, the onus is on the 
 injured servant of showing some ground for his employer's 
 liability in the supposed case. 
 
 This is an ingenious mode of putting the question, but it 
 is certainly at variance with clear and undoubted law, and, 
 accordingly, " G-.B." does not hesitate to deny that there is 
 any general liabihty of an employer for injuries caused by his 
 servants in the course of his employment, and he boldly 
 asserts that " the general rule of the law of England is that 
 the master is liable only for his own acts." It is not too 
 much to say that this is a denial of a fundamental principle of 
 English law. It is absolutely one of its landmarks, its car- 
 dinal principles, that a man is liable not only civilly, but 
 criminally, for the acts of those whom he employs in the 
 course of their employment. So broad and so deeply rooted 
 is the principle of our law, that men may be and are held 
 liable, even penally or criminally, for the wrongful acts of 
 agents or servants, even though not expressly directed, if 
 within the general scope of his business or employment. It 
 was on this principle that, long ago it was settled that 
 proprietors of papers were ^;r«wa/ac/^ liable, even criminally, 
 for libels published in their papers, though without their 
 actual knowledge or express direction, and although the 
 publication, in fact, was made by some negligence ; and on 
 the same principle employers are liable for injuries caused by 
 the negligence of their servants in the course of their em- 
 ployment. 
 
 The general principle is, as laid down by Story in his 
 great work on "Agency," that he who acts by another is 
 taken to act by himself — " Qui facit 2^er alium per seipsuyn facere 
 videtur " — that is, he who employs another to do any act or 
 carry on any business for his benefit is the employer and 
 the other is his agent or delegate, and is regarded as the 
 instrument through whom the employer acts. The general 
 principle was stated with admirable clearness and applied to 
 the liability of employers for their servants' negligence in a 
 judgment of that excellent and learned lawyer, the late Mr. 
 Justice Yaughan Williams. Men, he said, carry on business 
 for their benefit and advantage by the hands of others, and 
 therefore, the law holds tnem liable for injuries caused by the
 
 27 
 
 hands of those they employ if arising through their negligence. 
 No doubt an employer is not liable for wilful injuries inflicted 
 by his servants, but that is the only sense in which the law 
 holds a man liable only for his own acts. The general 
 principle of law, therefore, is just the reverse of what "Gr.B." 
 supposes, viz., that men are always liable for the acts of those 
 whom they employ in the course of their employ. It is on 
 this principle that the liabihty of the employer for injuries 
 caused by his servant's negligence rests. These wilful injuries 
 are not in the course of their employment ! the injuries 
 they cause by mere negligence are so because they are doing 
 that which they are employed to do and do it negligently, and 
 the employer is doing it by their hands and is liable as if he 
 were doing it with his own. 
 
 This being the general rule and principle of law, it is for 
 those who say that the master is exempt from liability for 
 injuries thus caused to his servants to show some legal ground 
 and reason for the exemption. And the difficulty of so doing 
 is shown by this — that the reasons given during the last forty 
 years have varied and are utterly inconsistent. " G.B." says 
 this does not matter, as the law is settled ; but it matters a 
 great deal in considering whether the law has been rightly 
 settled and should be altered. No one who knows anything 
 of the history of law can fail to know that the Judges have 
 often made and altered the law under colour of^ declaring 
 it. Lord Campbell has left on record his declaration that the 
 Judges did so as to the law of libel. That they have done so 
 on this subject must be admitted, unless some clear and con- 
 sistent legal reason can be found for exempting employers in 
 the supposed class of cases from the liability imposed by the 
 general law. And no one can collect from the cases any such 
 clear and consistent reason. On the contrary, those originally 
 invented have been discarded as untenable, and others have 
 been invented now, discarded as absurd. The notion that a 
 man contracted that he might be maimed by the grossest 
 carelessness with impunity was relied on for years, and hundreds 
 of injured men had been denied redress on that ground. And 
 now it is discarded as a downright absurdity. This shakes 
 one's confidence in any other reason propounded by the same 
 authorities. And now it appears from *'Gr.B's" letter that 
 it is impossible to maintain the exemptions without impeaching 
 the general rule. It is boldly denied that there is any general 
 liability for the negligence of servants, and it is actually 
 asserted — contrary to every text-book — to be a general rule 
 of English law that a man is liable only for his own acts. 
 This is quite sufficient to show that the exemption cannot be 
 maintained and is contrary to law. The only principle on 
 whicli a servant can be deprived of remedy in such a case is 
 the well-known principle of law that a man cannot recover for 
 injury partly caused by himself, so that if he saw the negli- 
 gence or was a party to it he cannot recover. And it is
 
 28 
 
 curious that it is never noticed that in the first case on the 
 subject, '' Priestly v. Fowler," this was. the case, and the man 
 had been a party to the overloading of the cart which caused 
 the accident. But in his judgment Lord Abinger introduced 
 a number of irrelevant- observations, quite beside the case, 
 and, therefore, of no legal force or authority, on which this 
 novel doctrine was originally based. As the decision was 
 right it could not be questioned, and the irrelevant reasoning 
 got gradually adopted and extended in judicial rulings. The 
 reasons, however, were so sophistical that others were invented, 
 and so the monstrous fiction of a contract to be injured was 
 invented. That has now been discarded, and now the general 
 rule of law is boldly impeached because it is found impossible, 
 admitting the general rule of law, to maintain the exemption. 
 I venture to maintain the general law and to deny the alleged 
 exemption. 
 
 Yours obediently, 
 
 F. 
 
 Monday, Avru, 29th, 1878. 
 To THE Editor of the '' Times." 
 
 Sir, — Permit me to put side by side the two views that 
 Mr. Lowe says are diametrically contrary : — 
 
 *' Master and Servant do *' Master and Servant do 
 
 agree that the master shall not agree that the master 
 not be liable for damage done shall be liable for damage 
 by a fellow servant." done by a fellow servant." 
 
 Is there any difference ? I agree with my servant to 
 pay him wages and find him livery and hats. Nothing is 
 said about boots and shoes. Are any of the following expres- 
 sions wrong ? '^I have not agreed to find him boots. I am 
 not to find him boots. He is to find boots." But after ail 
 the question is, — Ought the law, as it is, to be altered ? 
 
 Your obedient servant, 
 
 G. B. 
 
 To THE Editor of the *' Times." 
 
 Sir, — I employ a large number of men and have several 
 boilers always at work. On one occasion a man who had the 
 care of the boilers inadvertently turned a wrong tap, let out 
 the water from a boiler, and caused an explosion, which 
 killed himself and another man. He was a careful, steady 
 workman, but a momentary impulse of some kind — a mere 
 slip, for which there might have been some physical cause in 
 the state of his health — led him to do an act which was fatal 
 to himself and a fellow workman, and might have been fatal 
 to many more. I had to bear the whole cost of replacing the 
 boiler, which was hard enough, but it would surely have been
 
 29 
 
 a grievous injustice if I had been required to compensate the 
 families of either or both of these men, or of the many others 
 who might have been injured. No human being can be 
 found who is always so wakeful and vigilant that he never 
 does an injurious act accidentally. And how difficult it is to 
 get men who are always and perfectly masters of themselves 
 and their business those only know who have dangerous work 
 to do, and whose capital is invested in machinery and boilers. 
 A little extra beer makes a man sleepy or nervous, and he is 
 forgetful and explodes a boiler, and according to Mr. Mac- 
 donald's Bill the master must not only make good his own 
 loss, but must insure all his workmen. Trained, sober, 
 intelligent men are scarce, men who not only know their duty 
 but who never fail in the execution of it ; large establishments 
 must be kept going with such workmen as are to be had. It 
 is not even a question of wages ; you may pay high wages 
 and get inferior services ; the men are not in existence who 
 will fulfil the required conditions — that is, who will work a 
 score or two of boilers with faultless vigilance ; and yet a 
 momentary, and even pardonable negligence may do irre- 
 parable mischief. Now, what is the remedy ? fcurely that 
 the workmen should form an insurance fund. A very few 
 glasses of beer would do it ; and the fact of their paying a 
 few pence weekly would bring the subject to their thoughts, 
 and perhaps create more careful habits. Where the fault is 
 clearly and indisputably due to the master's bad material he 
 should pay ; but where it is the act of a workman the common 
 fund should pay. It is the interest of the community that 
 accidents of this kind should be as few as possible ; but, if 
 the whole burden were thrown upon the master, if he were 
 compelled to insure all his workmen against all the accidents 
 which may arise from complicated machinery and the explo- 
 sive power of steam there will be less security than there 
 would be if the workmen joined in the insurance. Masters 
 are themselves liable in life and limb to the same accidents 
 as their men ; they are daily in their works, and for their 
 own protection they employ the best men and good material. 
 If a workman knows that his fellow workman drinks, he does 
 not report him, but screens him, and a few years ago the 
 workmen in South Wales combined to resist the introduction 
 of a system of character-giving by which every workman 
 should be required to produce a certificate from his last 
 employer. Masters have plenty to do in getting honest work 
 in exchange for their wages, but to be responsible for the 
 moral, mental, and physical condition of their workmen, and 
 to be compelled to protect them against the unavoidable acci- 
 dents of life, would be a liability that no reasonable legislation 
 would lay upon them. 
 
 I am, Sir, yours, &c., 
 
 H. .B
 
 30 
 
 Wednesday, May 1st, 1878. 
 To THE Editor of the ''Times." 
 Sir, — '' Qui facit per aliumfacit per 5^," is good law and 
 good sense, but it has absolutely nothing to do with the 
 question of a master's liability for the misconduct of his 
 servant. That liability is beside and in addition to that 
 established by the rule '' Qui facit,^^ &c. If A procures B to 
 murder C, A is guilty of murder, whether B is his servant or 
 not. If A procures B to build a house in such a place and of 
 such a plan that it must and does when built obstruct the 
 light and air to which C is entitled, A is liable whether B is 
 his servant or a master builder. If A tells B to drive as fast 
 as he can, no matter what mischief he does, and B drives 
 recklessly and injures 0, A is liable, whether B is his servant 
 or a cabman hired on the stand. On the other hand, if A 
 tells B to stop trespassers in search of game, and B with an 
 excess of zeal uses unjustifiable force, A would not be liable 
 if B was a policeman, but would be, according to recent cases, 
 if B was his servant. If A employs B to build a house and 
 the foundations mi^ht be dug so as not to injure C, but are 
 wrongfully dug so that they do so, A is not liable if B is a 
 master builder, is liable if B is A's servant If A tells B to 
 drive him to X, and B negligently drives and injures C, A is 
 not liable if B is an ordinary cabman, is liable if B is A's 
 servant. The reasons for these differences are obvious. In 
 the first three cases I have put, A has caused or procured the 
 injurious act, he has done it by another. In the last three 
 cases he has not caused or procured the wrongful act, he has 
 not done it by another. It is the misconduct of the other that 
 has done it and A is not liable, unless that other is his servant. 
 Then he is, not because he has done the act by another, but 
 because that other is his servant, acting within the scope of 
 his authority. The matter may be made obvious thus — A 
 employs B to pull down a wall. If the wall belongs to 0, A 
 is liable whether B is his servant or not. If B in pulling the 
 wall down negligently drops a brick on D and hurts him, A 
 is liable to D if B is A's servant ; but if B is not his servant 
 — if, for instance, instead of wages he has agreed to do the job 
 for £5, so that'he is not subject to A's orders as to how it 
 shall be done — A is not liable. It is absurd to say that the 
 maxim applies when the wrongful act is in direct opposition 
 to the master's orders. '' Drive carefully," is the order. The 
 man drives carelessly. Then by the maxim, the master drives 
 carelessly {facit per se), because the servant {alus) did ! The 
 liability of a printer for a libel depends on other considerations. 
 He carries on a trade which may involve the publication of a 
 libel ; he must take care it does not. I do not say this is a 
 good reason, but it is the reason. It is no longer law in all 
 cases. The principle is the same as that which makes a man 
 liable for a nuisance, who carries on a trade so as to 
 be a nuisance, though he has not been near the place
 
 31 
 
 for years, nor knows of it. It is not a liability for the act of 
 a servant. He would be equally liable if his partners printed 
 the libel or caused the nuisance. Lord Abinger may have 
 made many '' irrelevant observations ;" but allowance should 
 be made for him and other busy persons who have not had 
 leisure to study so as to lay down " clear and undoubted law." 
 but remain ignorant of ''fundamental principles, landmarks, 
 and cardinal principles." 
 
 It is no fiction to say that master and servant do not 
 agree that the master shall be liable for the misconduct of a 
 fellow- servant. It is an actual truth. Whenever two people 
 come to an agreement, there is negatively an agreement that 
 neither is bound to anything but what is agreed. In order 
 not to be misunderstood, let me say at once that usual terms 
 are implied and bind as much as if expressed. If I order a 
 coat of a tailor, and he accepts the order, the cloth must be fair 
 and the fit must be fair, and I must pay a fair price if none 
 was named and ready money, though none cf these things 
 may have been expressed between us. But negatively we 
 agree there are no other terms, whether we express these 
 or not. We do not agree that I shall order a waistcoat of 
 him,nor that he shall have his boots of me. It is manifest 
 that the duty of a master to a servant and the right of a 
 servant against his master depend on agreement, or, if the 
 expression is preferred, agreement and non-agreement. 
 Suppose a servant was hurt in his employment by no fault of 
 anyone — ^.^.. owing to a defective casting which neither the 
 maker nor any one else can guard against. Suppose the 
 workman made a claim on the master for compensation ; the 
 master would say, ''I did not agree to compensate you in 
 such a case." But as two are required to an agreement, he 
 should say, " We did not agree that you should be com- 
 pensated in such case. That is what he says now in the case 
 of a claim for compensation* for injury by the negligence of a 
 fellow -workman. 
 
 That the question is, what is the agreement between the 
 master and servant is manifest from this, that the servant 
 might bargain and he and his master agree for compensation 
 being paid to him for damage caused by a fellow-servant's 
 negligence. He would then be entitled to it by the agree- 
 ment. He is not entitled now because there is no such 
 agreement. And whether there is no such agreement, because 
 there is no agreement on the subject or an agreement to the 
 contrary, is a matter of indiJfference. But as I said before, 
 the question is, not whether this or that maxim applies, or 
 whether the matter has been well reasoned. Quijaait per 
 alium facit per 5^? " is entitled to all respect, but we must not 
 have a superstitious reverence for it ; and if in some way 
 Judges and lawyers have blundered out of it into something 
 better, let us be thankful and leave the matter where it is.
 
 32 
 
 I nevor said that "the general rule of the law of 
 England is that the master is liable only for his own acts," 
 nor anything like it, nor that could be mistaken for it. 
 
 a.B. 
 
 Thursday, May 2nd, 1878. 
 To THE Editor of the *' Times." 
 
 Sir, — A master blacksmith, after much time and trouble, 
 succeeds at last in obtaining the services of two thoroughly 
 competent and skilled servants — A and B — to work at his 
 forge. A is careless, and unfortunately lets fall a red-hot 
 horseshoe on B's hand. The immediate results are not 
 serious, and B continues to work, and in his turn is careless, 
 and unfortunately strikes A on the elbow with his hammer. 
 The ultimate results of these two careless acts are that B 
 loses the use of his hand and A for ever has a stiff joint. 
 The master loses the services of both his workmen, and each 
 of them brings an action against him to recover damages for 
 the injuries received through the negligence of his fellow 
 servant. Upon this the question arises. Ought the master to 
 be made liable ? Mr. Macdonald boldly answers '* Yes," and 
 brings in a Bill to make him liable. Mr. Lowe says, ** Before 
 I answer the question or say what the law ought to be, I 
 wish to point out that before the year 1837 the master 
 would have been liable, but in that year Lord Abinger and 
 the Barons of the Court of Exchequer altered the common 
 law as it was then believed to be, and for the benefit of the 
 masters deprived the workmen, without their knowledge, of 
 their right to obtain compensation, and this decision, con- 
 trary to law as it was and founded on no principle, has never- 
 theless been approved and followed by all the most eminent 
 Judges, not only in this country, but in America, for 40 years." 
 
 Sir George Bowyer says, " A man is a practising barrister 
 one day and a Judge the next. His opinion on the one day 
 is not worth much, why on the next day should it be worth 
 much more? Therefore, don't mind what the Judges say, 
 but read ' Petrus Faber,' and use your own common sense, 
 and you will at once see that if you maintained the bad and 
 unjust law which now makes a master liable to strangers for 
 the negligent acts of his servants, you must answer the ques- 
 tion proposed in the affii-mative." 
 
 Your correspondent " F." then enters the lists, and tells 
 us not to mind what " G. B.," another of your correspondents, 
 says, notwithstanding that '* G. B." has been engaged for 
 nearly half a century in the practice and administration of the 
 law, because his argument is based on a denial of a funda- 
 mental principle of English law, which may be found in every 
 text-book. 
 
 Mr, Macdonald has been already answered in the House 
 of Commons, and probably will be answered again, Mr.
 
 33 
 
 Lowe has been answered, not in the House of Commons, for 
 I had not time to do it, but with more effect in The Times by 
 a " Judge of the Supreme Courts in Scotland," and, if I may 
 make a guess, by an authority of not less eminence, *' G. B." 
 Sir George Bowyer, when he admits that the existing law is 
 a bad and unjust law, gives a good and sufficient reason for 
 not extending it. To your correspondent " F." I would wish 
 to make a short reply. He says that " G. B." boldly asserts 
 (and as he puts the sentence between inverted commas he 
 professes to quote the ipsissima verba of *'G. B.") that " the 
 general rule of the law of England is that the master is liable 
 only for his own acts." I cannot find that statement in 
 *'G. B.'s" letter. *'F." here starts by putting a statement 
 into '* G. B's." mouth which he has not used ; he then puts 
 his own interpretation on that statement, and proceeds to 
 show that the statement so interpreted is wrong. I do not 
 think that, " F." is very successful even with these advan- 
 tages ; but it is not a satisfactory mode of argument, and it 
 would have been more to the purpose aud satisfactory if " F." 
 had attempted to answer what ''G. B." certainly did say, — 
 viz., that " there is not any general law that everybody who 
 is hurt by the negligence of a servant acting in his employ- 
 ment shall have a remedy against his employer." This " F." 
 does not attempt to ans\^er, unless an answer is involved in 
 his assertion that *' the only principle on which a servant can 
 be deprived of remedy against his master is the well-known 
 principle of law that a man cannot recover for an injury 
 partly caused by himself." Where, I should like to know, 
 is to be found the authority for this sweeping assertion? 
 But the most notable passage of " F.'s " letter is that in which 
 he endeavours to explain away the decision in * * Priestley v. 
 Fowler," by saying that, as the plaintiff in that case had 
 contributed to his own wrong, the decision of the case was 
 quite right, however irrelevant was the reasoning of Lord 
 Abinger. It would indeed be curious if it was reserved for 
 '' F.," after this case had been subjected to the criticism of 
 the acutest legal minds in this country and in America for 40 
 years, to be the first to discover that the Court of Exchequer 
 had entirely misconceived the question which they had to 
 determine, and, after mature consideration, had given a judg- 
 ment quite beside the mark. But if " F." will take the 
 trouble to look at the ease again, he will not be altogether 
 satisfied with his discovery. He will find that the question 
 in ''Priestley v. Fowler" arose upon a motion in arrest of 
 judgment; and was whether the declaration disclosed any 
 cause of action. Inasmuch as the declaration contained no 
 allegation either that the plaintiff knew or that he did not 
 know that the van was overloaded, the question of contri- 
 butory negligence did not, as " F." suggests, arise, and could 
 not arise, in the case.
 
 84 
 
 As to the invention of the ''monstrous fiction of a con- 
 tract," which *T." ridicules, it is not more monstrous to 
 imagine that A and B, in the case I have put, undertook, 
 when they engaged to enter the service of the blacksmith, to 
 run the risk of the red-hot horseshoe or the blow from the 
 hammer, than it is to imagine that the blacksmith undertook 
 to compensate them for the result of those accidents which 
 they might have avoided, but which he could not prevent. 
 
 I remain, Sir, yours faithfully, 
 
 J E. BULWEE. 
 
 11, Kings Bench-walk, April 29. 
 
 Tuesday, 7th May, 1878. 
 
 To THE EdITOE of the '^ TiMES." 
 
 SiE, — The liability of a master for the wrongful act of 
 his servant, even when done without the knowledge and 
 against the general or specific instructions of the former, was 
 never so forcibly illustrated as in the case of the newspaper 
 proprietor. Lord Tenterden (in^'E. v. Gutch") held that 
 the innocent proprietor was responsible simply because he 
 furnished the capital, and received the profit ; and not civilly 
 liable only, but criminally. The case of '' E. v. Gutch " was 
 a criminal prosecution for a libel of which the newspaper 
 proprietor had no knowledge whatever ; and so were 
 the earlier cases of " E. v. Almon," ''E. v. Walter," 
 and *'E. v. Cuthell." ''I remember," said the late 
 Lord Abinger when at the Bar, '* an exhibition in this Court 
 which I certainly did not applaud, of sundry proprietors of 
 newspapers who had retired from business into different and 
 distant parts of the country, some of them retaining a legal 
 interest in the property only to secure the pensions on which 
 they had retired who were all brought up in a body, and fined 
 from £20 to £25 each for publications of which they had 
 probably never heard, in the metropolis ; upon the ground, 
 not obvious at first sight" — he was arguing on the question of 
 venue — "that wherever the proprietor is, the property gives 
 him an interest, which, in the case of a libel, makes him a 
 guilty publisher in the place where the act of publication is 
 consummated." (See Lord Abinger's ''Life" by Mr. P. 
 Scarlett, p, 321). Those proprietors were liable to imprison- 
 ment as well as fine. 
 
 This monstrous state of the law was altered, as '' G. B." 
 mentions, by one of Lord Campbell's Acts (C and 7 Yic, cap. 
 96, sec. 7) ; but surely it ought to teach us the necessity of 
 carefully examining the principle on which the master's 
 present civil liability for the misconduct of his servant rests, 
 before it be extended. 
 
 P. B. M. 
 
 WALL, PRINTEE, WIG AN.
 
 r^- Jk