rate materially lower than the sum of the rates from New York to their city plus the charge for transportation therefrom to the ultimate destination. They therefore find it impossible to longer compete for much of the trade that once was theirs, and much of the dullness that is gradually settling down upon our western cities is owing to this cause. It is evident, therefore," continues Mr. Vining, "that the law in this way creates an injustice far greater than any which it was intended to remove; an injustice far greater than the most reckless of railroad officers would have dared to inflict upon the patrons of his road." When the Interstate Commerce Commission, therefore, in the Louisville and Nashville case held that the public welfare required railways to be operated subsequently to the Act, precisely as they had been operated before it, and the only public safety was to overlook the Act completely, it kept to the line of truth and soberness, no doubt. But how has it helped the railways? Clearly they must get together and settle the transportation problem for themselves, or else let it go unsettled.

It was clearly unfair that this dog-in-the-manger law, this ironclad statute which forbade them on peril of death to pool their issues, either to discuss or settle them themselves, and at the same time declined to settle their issues for them-which compelled them to fight their costly fight at the expense of their stockholders and forbade them to treat for peace-it was clearly unfair that this statute should be other than Pickwickianically enforced. So, long ago, the warring railroad companies came together in 'conference,' 'committee,' or 'synod,' and terminated the ruinous battle I have above alluded to. Only (in deference to the statutes of united Germany, and the Bismarck policy whose spirit has lately materialized among us in the shape of an interstate commerce law), whatever they called it, they were mighty careful not to call it a "pool."

So far back that memory of man runneth not to the contrary— imported into the very earliest English jurisprudence from the Roman Code, was the theory of Nemesis, of the Inevitable, the Unavoidable. When it reached our Motherland and Christian times, and clamored for recognition in the Common Law, our reverent Norman-Saxon lawyers, to be sure, called it the "Act of God." But it was the Stoic "Fate" of the Roman-his "Nemesis," his "Adrastea,"-just the same; and the earliest English digests declared that "the act of God or of the public enemy" disfrom/ charged all legal responsibility.

The Roman law having always been, as it still is, the law of continental Europe, it was inevitable that such American colonies as were settled from the continent should retain the doctrine of the "act of God," and that when the Spanish brought it to Mexico, and implanted it in a community saturated with superstition, it should have augmented quite as rapidly as its adumbration has waned with us, Religious faith being in Mexico to-day as living and active a force in common personal life with the great body of the people as it was in Europe in the middle ages; we have an illustration of how, while the limitations of the Old-World doctrine have been gradually narrowing in the United States, it still holds its ground in Mexico with proportions which practically make it the leading condition of all contracts, expressed and implied. "As an instance" (writes Mr. W. W. Nevin, Secretary of the Mexican National Construction Company (Science, Dec. 3, 1887), "of how this provision enters into express contracts, in Mexico, let us take the great railway-concessions to the leading American companies. In these concessions "fuerza mayor" generally appears in three distinct places. The obligations of the company to build within certain fixed periods are suspended in case of "fuerza

mayor." The concessions are forfeited by the companies carrying any foreign armed force or goods contraband of war, unless they can show that this was done because they were unable to resist "fuerza mayor." Certain bounties granted to the railways cease during the time that the operation of the lines is suspended, even if the suspension should take place by reason of "fuerza mayor." In the smaller transactions of daily life this doctrine continually appears as an unwritten law, which suspends all other laws, or contracts. or obligations. Superior force, which often in Mexico means what would simply be called disaster in the United States, is to the Mexican mind a good defense against almost any obligation. For instance: should one lease a boat for a month at a fixed sum, and unusual storms prevent using the boat for half the month, that would be ample reason why the lessee should tender only half the rent to the lessor, and he feel constrained to accept the offer.

Fuerza mayor' is translated as superior force,' or 'uncontrollable circumstances. These circumstances are nowhere, to my knowledge, defined, but the facts of what are uncontrollable circumstances are to be decided in each case. The coercion of an armed force is fuerza mayor.' The violence of storms is 'fuerza mayor.' The flooding of a river is 'fuerza mayor.' And, as before remarked, very generally what we are apt to consider as disaster, in Mexico becomes fuerza mayor,' and operates to relieve a contract of its obligations. To the American mind a contract made must be carried out, and disaster, if there is any, falls on the man who has loosely guarded his contract." Mr. Nevin adds: "In the confluence of the American and Mexican civilizations now taking place, it becomes an interesting question how this wide difference between the usage of the two countries will adjust itself." My own idea is that as United States capital and energy are speedily civilizing Mexico by building railroads within her territory, doubtless we may expect a very considerable attenuation of the doctrine at no distant day. But in the common law countries of England and the United States the doctrine is oftener laughed at than applied. In our very

youthful days, indeed, we may have been taught that railway accidents were sent to teach us the shortness and uncertainty of human life. But most of us have survived that view of the matter. Counsel for a railway company, who, in defending an action for damages for haystacks destroyed by fire communicated from the company's locomotive, claimed that his client had no control over the winds of heaven, speedily found himself out of court-his client should have used spark-arresters. But until a very recent date, courts of justice habitually saved time and routine labor by assuming accidents far less remote from their proximate causes than the distance between a haystack and a smokestack to be Acts of God;' though, indeed, a very recent English court, while recognizing the principle, declared that a shipwreck, to be a veritable act of God, must have happened in extremely bad weather. And yet, possibly a well-known rule of law limiting the responsibility of the employer for mental conditions of the employé may not be entirely without bearing upon the question at hand. The common law expressly declares that there are possible conditions of an employé's mind which discharge the employer. An employé who, in ejecting trespassers, becomes vindictive, passionate, or willful, and on that account employs a surplusage of force, so acts at his own and not at his employer's peril. Might there not, for example, be a question whether an entirely unforeseen and instantaneous absence of mind on an employé's part was any more within his employer's control than a burst of passion? Let us see. Though to-day in the United States the principle has all but disappeared from our digests, its existence is rather suggested by the somewhat startling fact, that, in all our recent chronicle of railway casualty (and I confine myself to the United States in this chapter, because our safety appliances are invariably the latest, costliest, and most elaborate in the world, our corps of watchmen and care-takers the most numerous, and our estimates of the value of human life incomparably the largest), as a rule the simplest accident is the deadliest, and the utmost perfection of life-saving appliances (whose adoption saves in nine hundred and ninety-nine cases in the thousand) may yet turn out to be

helplessness itself in the thousandth case when the calamity arrives in other words, the disaster, when it comes, will be found to consist in the operation of some perfectly familiar law of nature (as of gravitation or inertia), set in motion by the simple oversight of some trained and trustworthy subordinate; which would have resulted from identical causes thirty centuries ago to the most primitive of conveyances equally as well as to our own limited expresses, with their air-brakes, vestibules and couplerbuffers.

To-day, the maps

In examination of the history of railway accidents in the United States, the physical conformation of the country should not be overlooked. As railways were first constructed among us, and had their formative days of operation, in the Eastern States rather than among the flat lands and ordinarily easy grades of the Ohio valley, it was only natural that the bulk of experiment, mismanagement, error, and fatality, should have been expended on our Atlantic slopes. The period of the railway in the United States is yet one very insignificant in point of years. of our territory of greatest railway development have Lake Michigan and the Mississippi, instead of the Atlantic Ocean, for their east. But by the time that railway construction had begun to extend westwardly from those boundaries, those greatest insurances of safety-the air-brake, the coupler-buffer, the steel-rail, the improved means of communication between the engineer, conductor, and his crew, which had been slowly wrought out in the East-had come into practical use. Hence it is that the Pacific railroads, though spanning gorges, climbing summits, and surmounting problems of construction to which the achievements of our Atlantic slope railroads are moderate, have no such records of manslaughter and destruction as we find in the records of Eastern rail-transportation. At present every American railway is equipped-is obliged by law to be equipped-with the last improvement in safety-insuring devices, not only for the convenience of the passenger, but for the safety of the employé against his employer as well as against fellow-employé. And it is an amenity to the credit of the railway system (which ought not to be lost