Page:Harvard Law Review Volume 12.djvu/222

202 202 HARVARD LAW REVIEW. very obedient servant. If you fought for your King, you were in his service; if you worked for him at home, you were still in his service. The King himself could be no more than a servant of his Lord and Master, the Redeemer. The worship of the Deity was Divine service. And the worshippers felt no incongruity between referring to themselves as "we. Thine unworthy servants," and to the Deity as "Our Father." Now strike out everything personal from the conception of a servant, everything that leads him to feel that he is doing something for somebody else, and what is left is the employee. There is not a single noble use of the word " servant " or " service," for which " employee " or " employ- ment" could be substituted. It is not surprising, therefore, that employees at once acted differently from servants, and began suing their employers, both in England and America, for injuries caused by the negligence of co-employees.^ The courts, however, were devoted to precedent. They were the legitimate product of the view that somewhere or other, " in mibibus or in gremio magis- tratunniy there existed a complete, coherent, symmetrical body of Enghsh law of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circum- stances."^ As a matter of course they looked for precedent; and almost as a matter of course they applied to employees the recog- nized principles applicable to servants, because servants were more nearly like employees than any other class of persons. But they were not just like employees. A true servant owed his master an allegiance that was not due to any mere contract. No contract could put a servant and a son on substantially the same footing, or make the murder of a master petit treason. The employee, on the other hand, was entirely a creation of contract, and the courts, in introducing a term into that contract, whether as to suing for 1 Murray v. S. C. R. R. Co., i McMuIlan, 355 (railway employee, South Carolina, 1841); Farwell v. B. & W. R. R. Co., 9 Met. 49 (railway employee, Massachusetts, 1842) ; Hutchinson v. York, Newcastle, & Berwick Ry. Co., 5 Ex. 343 (railway em- ployee, England, 1850) ; Bartonshill Coal Co. v. Reid, 3 McQ. 266 (miner, Scotland, 1856). Priestley v. Fowler, 3 M. & W. i, presented the fellow-servant question rather by the pleadings than by the facts. The evidence relied on showed that the accident was due to the negligence of the master himself. After a verdict on this evidence for the plaintiff, the defendant made a motion in arrest of judgment for insufficiency of the declaration which set forth the negligence of a fellow servant; and prevailed. Sword V. Cameron, i Scotch Sess. Cas., 2d series, 493, 1839, seems also to have contained much evidence of the master's negligence. 2 Sir Henry Maine, Ancient Law, 31.