the rights of the people must be championed and judicial oppression overthrown.

Criticism of a court after a case has terminated is properly subject to no limitation except the law of libel,3 but discussion that is before or contemporaneous with a trial may be the source of very serious injustice to litigants. Where the jury are allowed full liberty outside of session time, the possibility of misinformation and prejudice is almost unlimited. To keep them in close confinement is not only an unwelcome remedy, but one that is thoroughly inadequate. It leaves untouched the reaction upon the judge himself when his animosity is aroused by press comment, the effect upon the jury before it is impanelled, and also the very powerful indirect forces that reach a jury after the trial begins. In spectacular trials like that of Leo Frank, Thaw, Hattie Le Blanc, or Luetgert, where all the great dailies devote several pages to the testimony, and flaunt daring headlines about the guilt or innocence of the accused, public opinion runs so high that no amount of precaution can prevent its being felt by the jury. With this in mind the English courts have adopted a strict view which would probably go the full length of forbidding any publication whatever if the necessity seemed strong enough. Public opinion would not permit our courts to adopt this view. Not only is the mystery of a closed door too much for the American public to endure, but they somehow feel themselves entitled to their breakfast table thrill, as though by immemorial user. It would be much better to allow unrestricted a verbatim report of all the evidence that goes to the jury coupled with such purely descriptive comment as is reasonable and impartial, and an addition of the arguments on points of law if it is desired. The difficulties which this creates in case a second trial becomes necessary are more than offset by the suspicion which would immediately attach to any court that adopted Star Chamber methods. But any attempt by a newspaper independently to run down clues ahead of their appearance in court, to supplement the trial by the publication of facts not appearing in testimony, to print evidence which the judge rules inadmissible, to report argument on the facts which takes place while the jury are excluded, or to give partisan comment upon the testimony either directly or by the subtle innuendo of headlines should be severely frowned upon and punished by the imposition of heavy fines if necessary. The jurisdiction of the court to punish for contempt should be based upon the character of the acts done rather than on any technical rule about the "presence of the court." If some such dividing line as above suggested could be clearly established, friction between the newspapers and the courts from misunderstandings as to the power of each would be lessened. It would give the public information without partisanship, and would make less frequent the essentially arbitrary remedy of summary process for contempt. If the action of Judge Hand and Judge Killits is followed by similar summary punishment of offenders by other courts, clear rules may eventually be developed for the trial of causes by juries instead of printer's ink.

See Storey v. People, 79 Ill. 45.

4 King v. Clement, 4 B. & Ald. 218; Hunt v. Clarke, 58 L. J. Q. B. 490, 494. See 42 NAT. CORP. REP. 153.

See In re Shortridge, 99 Cal. 526, 34 Pac. 227.

THE OBLIGATION OF AN EMPLOYER TO PROCURE EMERGENCY MEDICAL ATTENTION FOR AN EMPLOYEE INJURED WITHOUT HIS FAULT. That the law does not seek to enforce moral duties,1 as such, is axiomatic. The law of torts is concerned merely with restraining one from active conduct likely to injure others. One need not, therefore, move a finger to rescue a stranger from peril,2 though, indeed, if he is responsible for that peril because of a breach of legal duty, it behooves him to lessen the evil consequences of an injury that he must pay for. The rare affirmative non-contract duties arise chiefly from certain relations, - such as master and servant, or carrier and passenger,3 and it is upon the basis of some relational duty, if at all, that we must justify a recent case holding a stone quarry company liable for the negligent failure of its superintendent to summon prompt medical assistance for an employee dangerously injured without the company's fault. Hunicke v. Meramec Quarry Co., 172 S. W. 43 (Mo.).1

Aside from dicta," this case seems the first to determine expressly that an employer has this relational duty when the employee is powerless to help himself. The class of cases most relied on by the principal case holds that certain agents have emergency authority to employ physicians on behalf of the principal, but these are at most dicta, for it may well fall within an agent's incidental powers to do certain acts which, though not obligatory upon the principal, are yet to his interest to have performed. On the other hand, some cases denying such emergency

1 "It is undoubtedly the moral duty of every person to extend others assistance when in danger. . . . And if such efforts should be omitted by anyone when they can be made, without imperiling his own life, he would by his conduct draw upon himself the just censure and reproach of good men, but that is the only punishment to which he would be subjected by society." Field, J., in United States v. Knowles, 4 Sawy. (U. S.) 517, 519.

2 An extreme case held that a railroad company had a duty to stop and pick up trespassers run over without its fault. Whitesides v. Southern R. Co., 128 N. C. 229, 38 S. E. 878. This, of course, is at variance with the law in enforcing a purely humane obligation. Union Pacific R. Co. v. Cappier, 66 Kan. 649, 72 Pac. 281. Cf. Adams & Reid v. Southern Ry. Co., 125 N. C. 565, 34 S. E. 642.

3 See Professor Pound in 25 INTERN. J. OF ETHICS, NO. 1, in the law of torts, the existence of some relation calling for care or involving a duty of care is often decisive of liability. . . . In the absence of a relation that calls for action, the duty to be the Good Samaritan is moral only." For a discussion of the relational duty of public servants, see NOTES, p. 620.

A statement of facts will be found in RECENT Cases, p. 638. It is possible that this case could have gone off on the ground that there was an active misfeasance which "made bad worse," for there was some evidence that a fellow servant was proposing to stop the flow of blood by tying a rope tightly around the leg of the injured man, when the superintendent stopped him, telling him "it would do no good." In such a case even the humble trespasser has rights. Northern Central Ry. Co. v. State, 29 Md. 420. But the court treats the case as one of a mere nonfeasance.

" In Ohio & Mississippi R. Co. v. Early, 141 Ind. 73, 40 N. E. 257, the legal obligation seems to have been recognized, but was held to have been fulfilled in that case where the employee declined further aid. Likewise, in Baptiste v. Baptiste, 130 La. 898, 58 So. 702.

6 In Terre Haute & I. R. Co. v. McMurray, 98 Ind. 358, it is true the court considered that the emergency authority existed because of the employer's legal duty. But in Cairo & St. Louis R. Co. v. Mahoney, 82 Ill. 73, a legal obligation was expressly denied, and the agent's emergency authority was spelled out from various considerations. For a similar view see Union Pacific R. Co. v. Beatty, 35 Kan. 265, 268, 10 Pac. 845, 846-7; Sevier v. Birmingham, S. & T. R. Co., 92 Ala. 258, 260, 9 So. 405; Union Pacific R. Co. v. Winterbotham, 52 Kan. 433, 34 Pac. 1052.

powers would seem to negative a legal duty, for if the employer had an emergency duty to summon assistance it is a fair inference that his highest representative present, performing that duty, had authority to do so. Furthermore, such a legal obligation seems to have been expressly denied. But apart from authority, the employer's duty enforced in the principal case is a sane application of the principle underlying those better defined duties of supplying safe appliances, a reasonably safe place in which to work, and competent co-workers. The relational obligation arises because from the nature of things the servant must trust his safety in these respects to his master's care. Without affirming that the master has a general duty to care for a sick or disabled servant," it may without inconsistency be held that some obligation does exist where a grievous injury has incapacitated the servant from summoning assistance. Being an emergency duty," it would extend only to requiring the employer to render such "first aids" as are accessible and, if necessary, to transport the servant to a place where he may get the needed attention.

12

What are the conditions under which this unusual relational duty should arise? It has been suggested that it should apply only in employments the inherent hazard of which renders grave injuries likely to occur." Though such circumstances would make a stronger case,13 it may be doubted whether this obscure line between dangerous and nondangerous occupations should be the determining factor. Rather should the duty be limited by a twofold inquiry: first, whether the servant, injured in the execution of his employment, is in urgent need of aid which he himself is powerless to procure, and second, whether the work is of such a sort as to give the employer a peculiar ability to render or

7 For a more detailed examination of the emergency cases, see LABATT, MASTER AND SERVANT, §§ 2003-2004. Many of the cases cited as denying an agent's authority to engage physicians do not appear to have been emergencies. St. Louis & K. C. R. Co. v. Olive, 40 Ill. App. 82. In others the question of emergency was not raised, though one apparently existed. Peninsula R. Co. v. Gary, 22 Fla. 356. Other cases limit this emergency authority of agents to employments, like railroading, that are especially hazardous. Holmes v. McAllister, 123 Mich. 493, 82 N. W. 220. Cushman v. Clover Land Coal & Mining Co., 170 Ind. 402, 84 N. E. 759.

Makarsky". Canadian Pacific R. Co., 15 Manitoba L. R. 53, 70; King v. Interstate C. S. R. Co., 23 R. I. 583, 51 Atl. 301.

• Professor Bohlen, in an article in 56 AM. L. REG. 217, 334, finds a tendency of the cases to apply "the general principle that whenever the servant must, from the very nature of the employment, encounter perils from which the master alone can protect him, the master owes him a duty to take care to afford him adequate protection."

10 This was early settled in Wennall v. Adney, 3 Bos. & P. 247. But for a striking statutory reversal of this common-law conception, see, for example, the Illinois Workmen's Compensation Act, providing that "the employer shall provide first aid medical, surgical and hospital services, also medical, surgical and hospital services for a period not longer than eight weeks, not to exceed, however, the amount of $200." ILL. REVISED STATS., 1913, p. 1209.

"1 "This duty. . . only arises out of strict necessity and urgent exigency, where immediate attention thereto is demanded to save life or prevent great injury. The duty arises with the emergency and with it expires." Ohio & Mississippi R. Co. v. Early, supra, 141 Ind. 73, 81, 40 N. E. 257, 259.

12 See the principal case, p. 54, and also Holmes v. McAllister, supra, 123 Mich. 493. 498, 82 N. W. 220, 221; Salter v. Nebraska Telephone Co., 79 Neb. 373, 376, 112 N. W. 600, 602.

13 The typical case is railroading, wherein an employee is likely to be injured far from home, and unable to get aid save through the intervention of the employer.

summon assistance. For instance, if the driver of a delivery wagon is injured in a collision, there would be no duty of relief, for the service is not of a kind that gives the master any special or exclusive control over the situation. And this would be true, even in the fortuitous circumstances that the master was present at the scene.14 On the other hand, if a domestic servant is helplessly injured in the pursuance of a service presumably beneficial to the master, his isolation inherent in the work compels him to depend upon that protection which the master has the peculiar means to afford.15

With these elements, it is submitted, the law should impose a relational duty. Although particular cases have sometimes been covered by statute,16 there is room for a wise application and development of common-law principles in respect to the obligations which are cast upon the employer by this voluntarily assumed relation.

EFFECT OF AN UNACCEPTED PARDON UPON THE PRIVILEGE AGAINST SELF-INCRIMINATION. The highwater mark of protection accorded the privilege against self-incrimination, supposedly reached by the dissent in Brown v. Walker,' has perhaps been exceeded in the recent case of Burdick v. United States, 236 U. S. 79, 35 Sup. Ct. 267.2 In a unanimous decision the Supreme Court held that a witness does not lose his privilege against self-incrimination by being tendered an unconditional pardon which he refused to accept. This result was attained upon the grounds that the validity of a pardon depends upon acceptance; 3 that the witness is consequently not technically free from danger of punishment, although he had the means at hand to remove the danger; that he cannot be made to forego his right to refuse the pardon and avoid possible disgrace; and so his privilege still exists.

3

If the privilege against incrimination is removed, it may well be that the witness will be indirectly forced to accept the pardon. Inasmuch as it is revocable until accepted, if his evidence would disclose a strong case against him, he cannot safely trust to the future good will of the government, but must accept at once. But it is by no means certain that it is illegal to force the acceptance of a pardon. Clearly an accused has no right to demand prosecution, for a nolle prosequi may issue without

14 The moral duty would be strong, but there is nothing in the nature of the relation which could give rise to a legal duty.

15 The duty not being predicated upon any liability of the master for the initial injury, it matters not whether that injury came from the negligence of a fellow servant, from an "assumed" risk, or was partly due to contributory negligence.

16 For example, a number of states require medical assistance to be provided for employees injured in mines. See LABATT, MASTER AND SERVANT, § 1890. In South Carolina, a railroad is required to give immediate notice to a physician "most accessible to the place of accident." CIVIL CODE, 1912, § 3228. And it may be remarked that in states where an employer under the Workmen's Compensation Acts must indemnify his employees for all injuries "arising out of and in the course of the employment," prompt and effective steps are apt to be taken to prevent an enhancement of liability.

1 161 U. S. 591, 610.

For a statement of the case, see RECENT CASES, p. 642.

United States v. Wilson, 7 Pet. (U. S.) 150.

his consent. Nor can he insist upon punishment after conviction when the state expresses the contrary desire. So the only objection to enforcing the acceptance of a pardon must be the implication of guilt on the acceptor. A pardon is an "act of grace," issuing at any time after the alleged criminal act has been committed. Perhaps it is true, as it is often said, that since it does not issue on the assumption of innocence, there is an implication of guilt in its acceptance. But certainly an involuntary acceptance will connote no such disgrace any more than do the immunity statutes, which are held constitutional. While for the purposes of showing that the time of acceptance determines when a pardon becomes effective and irrevocable, it may be permissible to draw an analogy to a grant or deed,10 this analogy should not be carried to the illogical extent of losing sight of the true nature of a pardon in holding that its acceptance must be left to the will of the accused. So the objection that a denial of the privilege against incrimination might possibly indirectly thrust a pardon upon the witness is without weight. In placing so much stress upon the nature of a pardon, there is danger of losing sight of the true character and purpose of the privilege. The privilege against self-incrimination cuts into the general rule, that the state is entitled to the testimony of all its citizens, to the extent necessary to protect the witness from being compelled to bring about his own punishment." This privilege does not extend to protection from shame and disgrace that the disclosure of his participation in crime may bring. For example, the privilege is gone, when the Statute of Limitations has run against the crimes his testimony may reveal.12 Likewise an accepted pardon removes the privilege.13 And the statutes requiring testimony by giving immunity have been held constitutional, for by removing the reason for the privilege, it is destroyed.14 If the witness in the principal case is still open to dangers from prosecution, it is because of his own free will in declining the protection offered by the pardon provided that

4 The so-called right of a criminal to a trial and verdict has reference merely to the question whether a later prosecution, after a nolle prosequi of the former without his consent, places him twice in jeopardy. See United States v. Shoemaker, 27 Fed. Cas., No. 16,279, at p. 1069, 2 McLean (U. S.) 114, 119.

5 "If the King pardons a felon, and it is shown to the court; and yet the felon pleads not guilty, and waives the pardon, he shall not be hanged; for it is the King's will that he shall not; and the King has an interest in the life of his subject." Jenk. 139, Case LXII.

Marshall, C. J., in United States v. Wilson, supra, 160.

7 This point was not passed upon in the principal case, but see in the lower court, United States v. Burdick, 211 Fed. 492, 493; Ex parte Garland, 4 Wall. (U. S.) 333, 380.

8 See Cook v. Middlesex Co., 26 N. J. L. 326, 331; Manlove v. State, 153 Ind. 80, 53 N. E. 385.

Brown v. Walker, supra.

10 See United States v. Wilson, supra; In re Nevitt, 117 Fed. 448, 460.

11 The privilege has been given undue emphasis by its incorporation into the federal Constitution and the constitutions of all but two of the states, but this does not change its purpose as a rule of evidence. See Professor Wigmore in 5 Harv. L. Rev. 71; 15 ibid. 610; WIGMORE, EVIDENCE, §§ 2250, 2251. See Twining v. New Jersey, 211 U.S. 78, 102.

12 Mahanke v. Cleland, 76 Ia. 401, 41 N. W. 53. See 5 HARV. L. REV. 24, 27. 13 Queen v. Boyes, 1 B. & S. 311.

14 Brown v. Walker, supra. See Hale v. Henkel, 201 U. S. 43.