age, persons maimed or deformed (persons blind in both eyes come under this category), and women. All these may compound for penal servitude, even for lifetime, by the payment of a fine, for instance 24 yen instead of 100 days' penal servitude, and in case of their not being able to pay the fine on account of poverty, the term is reduced, and three days' pillory is substituted for 100 days' penal servitude. Women, who are guilty of disobedience to parents, of theft, arson, or homicide, are debarred from this indulgence, but with regard to the very old or very young, the maimed or deformed, no such exception is made. The inequality before the law is, however, in their case more justifiable than it is in the case of the samurai and the officials. The equality ought to be restored, not by subjecting these two classes to penal servitude for short terms, but by extending the privileges of imprisonment without hard labor and of fines to the heimin.

"We have thus far been pleased to acknowledge the feelings of humanity which evidently animated the compilers of the new penal codes, and it is therefore with great regret that we there meet an express recognition of the institution of torture; the instrument of torture is minutely described, and punishments are provided for officials who maliciously subject persons, whom they know to be innocent, to torture, or who by torture extort accusations against innocent persons, or who subject persons under 15 or above 70 years, or pregnant women, or persons maimed or deformed, to torture. It is, however, to be observed, that the last of the two penal codes, whose contents have been summarized in the volume before us, was published already in 1873, and torture may since have been practically abolished, but as our author remarks, and as we have repeatedly insisted there is no law absolutely forbidding its use, and, up till quite recently, ugly stories crop up now and again, which would seem to prove that it is still practically in use, even if only exceptionally. The retention of that institution remains as a foul blot on the reformed penal code of Japan."

CORRESPONDENCE.

TO THE EDITORS OF THE AMERICAN LAW REVIEW:

I HAVE read with interest an article in the October (1877) number of your Review, on "The Relation of Master and Servant." I have had some occasion to examine

the principles referred to in that article, and desire, informally, and without examination of authorities, to present a few suggestions.

In the case of Rourke v. White Moss Colliery Co., spoken of in that article, the decision, in favor of the defendant, was placed upon the ground that Lawrence, whose negligence caused the accident, was not, when the accident occurred, the servant of the defendant. The facts as stated were that the defendants, having partly sunk and excavated a pit or shaft for its colliery, contracted with one Ralph Whittle, as contractor, to carry on the work for them at a certain price per yard, Whittle to find and provide all labor necessary for the work, and the defendant to provide, and place at the disposal of Whittle, at the mouth of the shaft, the necessary engine, engine power, ropes, pulleys, and hoppets, with two engineers to work the engine, one for the night and one for the day; all to be under the control of Whittle. The machinery furnished was the property of the defendant. Lawrence was one of the engineers employed by defendant, and in charge of the machinery; but, at the time of the accident, was, as was the machinery, under the control of Whittle. The plaintiff Rourke was employed by Whittle, and was engaged in the work when injured. It was held that Rourke and Lawrence were fellow-servants in the employ of Whittle, and that neither of them, when the injury was done, was the servant of the defendant, although Lawrence was then in the general employment of the defendant, and so the plaintiff was beaten. The writer of the article says that, in the view of Chief Justice Cockburn, apparently concurred in by the rest of the court, it might very well be contended that the contract was, in fact, that Whittle should pay the engineer for his services in working the engine, &c., and that he made the company his agent to pay; and the company retained no control over the engineer, except the power to dismiss him when they chose.

I think the decision in the case was correct, but the reason given for it was unsatisfactory. If we recur to the principles which govern the liabilities of masters for injuries to their servants, I think a better criterion for decisions in such cases may be found, and much of the apparent mystery and uncertainty which surround them be dissipated. The servant assumes all the probable risks of his employment, which, in the case of Rourke, included the risk of the negligence of Lawrence, and of being at work in conjunction with the engine, pulleys, and hoppets, no matter to whom they belonged.

On the other hand, whoever was Rourke's master was bound to see that proper care had been exercised in employing competent fellow-workmen for Rourke, and providing safe machinery in conjunction with which he was to work. Rourke and Lawrence, being engaged together in the same general work, have assumed all the risks of that work, and are entitled to the protection, which engaging in it implies, from some higher power, which stands to them in the place of master; and, whatever the manner of their employment, they must be treated as fellow-servants. It

is claimed that Lawrence was the servant of Whittle. Full as plausibly it may be affirmed that Rourke was the servant of the defendant. Whittle was the defendant's servant, in a general sense; and, as such, it may be said he, by direction of defendant, employed Rourke to work for defendant, and thereby Rourke became defendant's servant.

Had Whittle been injured, without negligence on his part, by the negligence of the defendant, in employing an incompetent engineer or furnishing unsafe machinery, there is no doubt that the defendant would have been liable to him; so also there is no doubt, in such a case, that the defendant would have been liable to Rourke. Whether liable to Whittle and Rourke, in such cases, as strangers, or as servants not properly protected, is of no special importance. The better position for the defendant would be that of employer, as furnishing the best chance of non-liability. Also there is no doubt that Whittle would have been liable, had Rourke been injured by Whittle's individual negligence in any way, without negligence on his own part. In fact, Rourke may properly be considered as, in some sense, the servant of both Whittle and the defendant, and by the circumstances they became bound, we think, to the performance of a duty towards Rourke; that is, the duty of proper care in furnishing for him competent fellow-workmen and safe machinery, in conjunction with which to work. The defendant and Whittle would each, certainly, be responsible for personal negligence to Rourke; and it may plausibly, and perhaps correctly, be said that each would be responsible to Rourke for the personal negligence of the other, as being in effect the immediate negligence of each. If so, the defendant and Whittle might be sued jointly or separately by Rourke, for the immediate negligence of either.

By the methods of construction above pointed out may be avoided a technical and confusing inquiry as to what constitutes a servant and what a master; and the multiplication of fine-spun and sophistical distinctions, which, in so many instances, tend to unsettle the law, and render its administration uncertain. The case cited shows no negligence that could be imputed to the defendant or to Whittle. The true defence of the defendant lay in this fact.

The difficulty with many of the cases hitherto has been that they have engaged in a protracted search to determine whether the relation of master and servant existed, and have not duly considered the real principles that should govern liability or non-liability.

In the case of Johnson v. Boston, referred to in the article, Boston was held liable, I infer, because master, and individually negligent. An examination of the facts of that case shows, I think, that Boston was no more master in that case than was the defendant in the case of Rourke.

Many of the cases say or imply that, in order to apply the rule of exemption, where one fellow-workman injures another, the parties must be servants of the same master. This is not true, unless being fellow-workmen necessarily constitutes them fellow-servants; for it is unquestionable, as we have said, that each workman does assume the ordinary risks of his employment with all others engaged in the same general work.

BENJ. H. AUSTIN.

By the Census of 1870 the total indebtedness of all the States and Territories is stated to be $328,244,520; while the true value of all the property in them, real and personal, is reported at $30,068,578,507.

It has generally been conceded that State debts rest alone on the faith of the State creating them, and that no remedy exists, under the American system of government, by which the States can be compelled to perform their contracts.

Mr. Webster, in his letter to Baring Brothers, of Oct. 16, 1839, when repudiation theories began to be discussed in several States, appears to have indorsed this view, in saying that the security for State loans is the plighted faith of the State as a political community. It rests on the same basis as other contracts with established governments; the same basis, for example, as loans made by Congress, that is, the good faith of the government making the loan, and its ability to fulfil its engagements.

But he does not say that States cannot be made to pay their debts. "It has been said," he says, "that States cannot be sued. . . . Nor would the power of suing give the creditors, probably, any substantial additional security. The solemn obligation of a government, arising on its own acknowledged bond, would not be enhanced by a judgment rendered on such bond. If it could not or would not make provision for paying the bond, it is not probable that it could or would make provision for satisfying the judgment.

"The States cannot rid themselves of their obligations other

wise than by the honest payment of the debt. They can pass no law impairing the obligation of their own contract. They can make nothing a tender in discharge of such contracts but gold and silver. They possess the adequate power of providing for the case by taxes and internal means of revenue. They cannot get around their duty, nor evade its force.

"Any failure to fulfil its undertakings would be an open violation of public faith, to be followed by the penalty of dishonor and disgrace, — a penalty, it may be presumed, which no State of the American Union would be likely to incur.

"If it were possible that any one of the States should at any time so entirely lose her self-respect and forget her duty, as to violate the faith solemnly pledged for her pecuniary engagements, I believe there is no country upon earth not even that of the injured creditor - in which such a proceeding would meet with less countenance or indulgence than it would receive from the great mass of the American people."

But experience, since that letter was written, has demonstrated that some security is necessary beyond "the plighted faith of the State." The violation of that pledge by one State impairs the credit of every other State and of the Union; and it has come to pass that States as States, and States as members of the Union, have come to be interested in maintaining the public credit of each, as it relates to every other one, and as it relates to the Union.

States cannot, it is true, free themselves from the obligation of their debts, except by honest payment; but they can omit the "honest payment," and let the obligation remain. They can pass no law impairing the obligation of contracts; but they can omit to pass laws to comply with them. They can make nothing but gold and silver a tender for their debts; but they can tender a new obligation, reduced in principal and interest, offering to the creditor the alternative of accepting that or nothing. While they cannot avoid their duty, they can and do let that duty remain unfulfilled.

They can do nothing to repudiate their debts; but they can repudiate them just as effectively by omitting to pay them. And one State, by this course of non-action, can so seriously impair the credit, injure the resources, and affect the interests of her sister States, that public policy and necessity alike require a careful