jury, either directly or indirectly, till 4 o'clock p. m. of the second day, as above stated, and nothing at any time about their being hungry. Nor did Mr. Scarborough, or anyone else, ask me to let the jury be fed after breakfast of the second day, when I told Mr. Scarborough to stop feeding them, as I have already stated.

The Supreme Court of South Carolina very properly hold that a verdict to which a single juror such was the case had yielded his assent under duress of hunger, ought not to be permitted to stand.

NEGLIGENCE: MASTER AND SERVANT - LIABILITY OF MASTER TO SERVANT FOR INJURIES THROUGH INCOMPETENCY OF FELLOW-SERVANT.— The rule that a master is not liable for damages for an injury inflicted by one of his servants upon another of them, engaged in the same general employment, has a well-known exception in the case where a master employs a servant who is not competent for the duties which he is required to perform, and where, by reason of this incompetency, another servant of the same master is injured. But this exception to the rule proceeds on the ground that the master, in selecting the servant, or in maintaining an inspection over him, has himself been guilty of negligence or other fault. In other words, the effort of the law is to award damages only for the personal negligence of the master, and not merely for the negligence of the servant. In the case of Cameron v. New York &c. R. Co.,1 the New York Court of Appeals was called upon to apply this principle, where it appeared that a servant, who was competent when employed, subsequently became habitually negligent, and his violation of his employer's rules caused the death of a fellowservant. The work of the negligent servant was of such a nature that, in the theory of the court, the employer had no opportunity to learn of his misconduct, and no such misconduct was reported by fellowservants, who were under positive instructions to report all violations of the rules. It was held that the employer was not chargeable with negligence in failing to discover the servant's habitual misconduct and in omitting to discharge him. At the time of the injury to the plaintiff the servant from whose incompetency it arose had been in the employ of the defendant for about four months; and the decision is hence tantamount to holding that the defendant would not, by a reasonable - exercise of the care which the law puts upon a master for the protection of his servants, have discovered the incompetency of this particular · servant in that length of time. Neither the reasoning nor the conclu

140 N. E. Rep. 1.

sion of the court is very satisfactory. The following extract from the opinion will show the reasons which satisfied the court that the defendant had maintained a reasonable inspection for the purpose of ascertaining whether the servant was competent or not:

But how was the master in this case to know that Norton habitually violated the rules for his own protection and that of his co-servants? His work was performed on freight trains running over a long line of railroad, with little, if any, opportunity for any officer or representative of the company to watch or observe him at any one point. He had sufficient ability and intelligence to do his work, and his omissions of duty were purely willful or thoughtless. It would be manifestly unreasonable and unjust, under such circumstances, to impute negligence to this defendant for the sole reason that during four months it failed to detect his delinquencies. The defendant had given him, by its rules, plain and simple instructions to govern his conduct with respect to the switches, and there was no reason to suspect that they would be disregarded, since it was quite as convenient for him to obey as to violate them. Moreover, it had in these same rules invited and requested all of his co-servants to make prompt reports to the company of any neglect or disobedience to the rules on his part, and no complaint had been made. It was reasonable to assume that his co-employés, whose lives might be endangered by his neglect, would observe and report his omissions of duty, if any were observed; and, if they failed to observe any, how can it be said that the defendant itself was in fault for not discovering what his co-servants themselves had not discovered? The negligent acts of Norton took place while he was working on the same train, and in a like capacity, with the deceased. It is more reasonable to suppose that they were done in his presence, or under his observation, as to imply knowledge on the part of the defendant; and if it can be said that the deceased knew of these omissions of duty on the part of his fellow-brakeman, and failed to report them, he might be regarded as voluntarily assuming the risks and dangers incident to his association in a common work with an incompetent co-servant. There is a manifest inconsistency in assuming that the officers or representatives of the defendant knew, or could have known, of Norton's violation of the rules, and at the same time that the deceased did not. On the evidence in the case, it is true that the defendant's servant was unfaithful, and that his want of care resulted in the death of the plaintiff's intestate. But the defendant cannot be made liable for his negligent act, unless it was at fault in selecting him for the work, which is not claimed, or in adopting such means as ordinary prudence and care would dictate to secure his fidelity, and I am unable to preceive what more it could have done, unless it employed other men to watch his conduct, and that would be plainly an unreasonable requirement.

In reply to this reasoning - or rather to this want of reasoning - it may be suggested that every freight train has, or ought to have, a conductor; that this conductor is, or ought to be, regarded in law as the representative and alter ego of the railroad company for the purpose of discovering the deficiencies of the men employed in the operation of

his particular freight train. And certainly where the negligence or incompetency of a brakeman employed on such a train may result in maiming or in killing a number of men, who, though occupying humble positions in life, have as good a right to live as a board of railway directors or as judges of an appellate bench, the period of four months is not an unreasonable amount of time, as a mere matter of law, in which to allow a railroad company to ascertain the character and habits of such an employé; and it should seem that judges would so decide whose intellects are not warped into the habit of doing their thinking on the side of railroad corporations.

CONSTITUTIONAL LAW: PRIVILEGE AGAINST SELF-INCRIMINATION. One of the most important decisions pronounced by the Supreme Court of the United States at its last term was in the case of Brown v. Walker. Our readers have no doubt followed that case from the beginning; and therefore these comments may seem somewhat stale. In order to understand the scope of the decision we must get back to the Counselman case.2 In that case Counselman declined to answer certain questions put to him by a Federal grand jury, respecting violations of the Interstate Commerce Law. He was thereupon adjudged by the District Court of the United States, for the Northern District of Illinois, to be in contempt of court, and was committed to custody until he should answer the questions. He sued out a writ of habeas corpus in the Circuit Court of the United States, but was remanded to custody.3 From this decision an appeal was taken to the Supreme Court of the United States, and the decision was unanimously reversed in an opinion written by Mr. Justice Blatchford. The ground on which it was decided that Counselman could not claim the privilege created by the fifth amendment to the Federal constitution against self-incrimination, was that he was protected by section 860 of the Revised Statutes of the United States, which provides that " no pleading of a party, nor any discovery or evidence obtained from a party or witness, by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture." But the Supreme Court took the view that this did not remove

1 161 U. S. 591.

2 Counselman v. Hitchcock, 142 U. S. 547.

3 Re Counselman, 44 Fed. 268.

the constitutional privilege of Counselman, for the reason that the protection of the statute was not as broad as that intended to be conferred by the constitution. "It could not," said Mr. Justice Blatchford, in giving the opinion of the court, "prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony that he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted." In other words, the court held that the constitutional privilege operated as a shield to the rogue so complete as to leave it within his privilege to withhold any testimony which he might think would afford a clue to a detective whereby he might be discovered to have committed some other crime. In order to do away with the effect of this decision, which practically nullified that provision of the interstate commerce law against discrimination, and allowed common carriers to build up one shipper and destroy another, Congress immediately passed an act providing that "no person shall be excused from attending and testifying, or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, might tend to criminate him or subject him to a penalty or forfeiture ; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding." 1 With this statute in force, a witness named Brown was interrogated before a Federal grand jury as to whether a certain railway company had paid a certain coal company any rebates, and he declined to answer the questions, on the ground of his constitutional privilege against self-incrimination. He was thereupon adjudged guilty of contempt, ordered to pay a fine and to stand committed until he should answer the questions. He sued out a writ of habeas corpus in the Federal Circuit Court, and that court discharged the writ and remanded him to custody. From that decision the present appeal was prosecuted to the Supreme Court of the United States, and the case there stands under the same designation of Brown v. Walker. A divided court, five judges against four, hold that the pro

1 Act Cong. Feb. 2, 1893, Chap. 93; 27 U. S. Stat. 443.

2 Brown v. Walker, 70 Fed. 46. 3 161 U. S. 591.

tection of the statute is as ample as that intended to be conferred by the constitution, and that the witness consequently could not claim the privilege of refusing to answer the questions. The opinion of the court, which is a very clear and learned one, is written by Mr. Justice Brown, and there are two dissenting opinions; the first is written by Mr. Justice Shiras, and concurred in by Mr. Justice Gray and Mr. Justice White; and the second is written by Mr. Justice Field for himself alone. The decision is one the importance of which cannot be overestimated. It is becoming too apparent that there is too much constitutional law in the United States for the benefit of rogues and criminals. The fifth amendment to the constitution should, of course, receive a fair and reasonable construction; but the extreme solicitude of a certain school of judges to extend it to the most fanciful lengths does not present an edifying spectacle. It is fairly to be observed that the privilege against self-incrimination, which exists in the English law, and which is embodied in all American constitutions, was a protest against that disgrace of the Roman law which still obtains in China and other semibarbarous countries, of compelling criminals to confess their real or supposed guilt, by torture. It is said by Macaulay that the last prisoner was put to torture in the tower of London, in the year 1640, the very year in which the celebrated Long Parliament met; though James II, when Duke of York and Governor of Scotland, tortured prisoners under his own eyes at a later day.

In a proper conception of government criminal prosecutions should be regarded as in the nature of parental correction; and the government should have the same right to a disclosure of the real truth from one of its citizens accused of crime, which a father has to a disclosure of the truth from his own child. The Anglo-American conception of the sacred right of criminals to conceal their crimes does not obtain anywhere upon the continent of Europe; and it cannot be said that private rights are not as secure in Germany and in France as in England or the United States. It is a curious public policy in which the government enters into a league with criminals and places in its fundamental laws solemn guaranties for their protection, and under which the judges who administer those laws manifest such zeal in favor of extending the protection thus created.

case.

It is to be greatly regretted that the court was not unanimous in this As it is, the effect of the decision will be very important in favor of public rights, and there will be fewer violations of the Interstate Commerce Law; less rebates to favored shippers, members of rings in which the managers of railroad companies are corruptly concerned.