Thus the Supreme Court of Errors of Connecticut in 1885 declared (Zeigler v. Danbury &c. R. Co., 52 Conn. 556): "The defense of common employment has little of reason or principle to support it, and the tendency in nearly all jurisdictions is to limit rather than enlarge its scope. It must be conceded that it cannot rest on reasons drawn from considerations of justice or of public policy. So far as the rule is to be retained it must have its foundation in the contract theory." It may perhaps be said with regard to this that to impute to the workman, by mere implication of law, a contract which he did not in fact make, and which cannot be supported by considerations of justice or of public policy, would seem to be a very extreme application of "the contract theory." Judge Hamersley of the same court, in a note to 70 Conn. 194, still more emphatically condemns the fellow-servant rule, and says: "The evil is too deep-seated to be remedied by judicial action; it needs radical treatment through wise legislation." Such radical treatment has now been given to it by the British Parliament, and is recommended by the Massachusetts committee. They propose, not to amend some details of the existing law of the employer's liability, but to discard it entirely, and to establish the rule of law on a wholly new theoretical basis. Compensation to the employee for injuries received by him is no longer to rest on the imputation of fault, negligence or other, to the employer. The occurrence of injuries is treated, rather, as an inevitable incident of modern industrial activity, the cost of which should be borne by the business, and be paid for by the consumer in the cost of the article. Every extensive factory must each year spend a considerable sum in the repair and replacement of machinery; but the business involves not only the breaking of machinery, but also the maiming and killing of men. Why is not the latter as much an expense of the business, which should be borne by it, and charged into the price of the product, as the former? Why should the manufacture be carried on so as to be beneficial to the general public and profitable to the proprietor, but to cast a heavy weight of loss upon a few individuals the least able to bear it? These questions are answered in the proposed "Employees' Compensation Act" by the concise provision in the first clause: "If an employee in any employment to which this act applies receives personal injury while performing duties growing out of or incidental to such employment, he shall be paid compensation by the employer in accordance with the scale and conditions of compensation hereinafter provided." This removes all questions of the employer's tortious negligence, and also all questions of the employee's contributory negligence, or "implied assumption" of risks. The single exception is made in section 4 of injuries received "by reason of his own wilful or fraudulent misconduct." Except for this the only question is, did the injury occur in the course of the employment? To obviate the natural opposition of employers actuated by fear of having the cost of manufacture greatly increased by this comprehensive liability, the act provides a scale of compensation which seems small indeed in comparison with the verdicts now sometimes recovered in personal injury cases, but which would probably compare more favorably with the net result which now comes into the hands of the victorious plaintiff after paying all his bills of litigation. The basis of computation is not the very difficult standard of the money value of the life of the deceased, of the pain and suffering undergone by him, or of the grief of his surviving relatives. The effort is rather to make good to those who have suffered it the support of his wages which they have lost, so far as that may be done without too great hardship upon the employer. In case of fatal injury, his dependents, if any, receive an amount approximately equal to his aggregate wages for three years, "or the sum of one thousand dollars, whichever of these sums is the larger, but not exceeding in any case two thousand dollars." If there are no dependents, only the expenses of sickness and burial are to be paid, not exceeding two hundred dollars. In case of total or partial disability, the injured man is to be paid a weekly payment, not exceeding fifty per cent of his earnings, nor exceeding ten dollars a week, for the period of his disability, not exceeding four years. Of course, the proposed act contains careful provisions intended to make clear all questions of difficulty likely to arise. It also contains provisions, deemed by the committee most important to its success, for arbitration of all questions of fact arising under it by arbitrators either agreed upon by the parties. or appointed by a judge of the Superior Court. This arbitration is to have the force of a judgment. "Any referee so appointed by a justice of the superior court may, at his dis cretion, submit any question of law arising under this act to any justice of the superior court for his decision; and such decision, or a decision rendered by the arbitrator himself in regard to any question of law, shall be conclusive, unless exceptions to the same are taken and filed in the supreme judicial court for final determination" (Sec. 24 of the proposed Massachusetts Act). It is evidently the hope of the committee that the simplicity of the facts imposing liability, and the definiteness of the rate of compensation, will lead to the settlement of the great majority of claims without litigation, even of the kind provided by the act. This result does not seem to have been obtained very perfectly in the operation of the English act, as will be seen hereafter, but that may be largely due to the novelty of the problems involved, and to the excessively cautions provisions with which the English act is guarded, many of which English experience enabled the Massachusetts committee to dispense with. The act proposed for Massachusetts is undoubtedly simpler, and seems likely to afford less opportunity for dispute, than the English act. Mr. Low's report as to the operation of the English act begins with the statement that "careful inquiry made, by personal interviews, of employers, employees, and officials of the Home Office and Board of Trade, who are charged with the execution of the law, justifies the statement that the Workmen's Compensation Act . . . has given as much satisfaction as can be expected from legislation of that character. The objection of the workingman, so far as he has any objection, is not to the act in principle, but to the fact that it does not go far enough. So far as employers are concerned, there is warrant for saying that they have adjusted themselves to conditions; and the compensation which they are compelled to pay does not bear upon them so heavily as to cut seriously into their profits, or to prove a factor in preventing them from retaining their trade in the face of foreign competition. The cost of compensation, I find, large employers regard in the same way as any other fixed charge incidental to and necessary in carrying on business.' He also quotes the Home Office as saying, in a report made in June, 1902, "the number of appeals on questions of law has diminished considerably-the figures for three years are 54, 90 and 61-and there seems therefore reason to hope that progress has been made toward the definite settlement of the legal questions in the interpretation of the act of 1897. On the other hand, the number of cases brought to the county court-in most of which it must be questions of fact that are at issue-still shows an increase. The figures are 1,347, 1,552 and 1,918. But even in view of this increase, the statement must be repeated that the cases which come before the county courts do not represent more than a very small proportion of those in which compensation is paid under the act. A great majority of claims are settled by agreement, and only a small percentage are made the subject of formal arbitration." It would seem that there can be little question of the evils attending the present state of the law in relation to employers' liability for injuries, nor of the inherent justice of the mode of solution now proposed. Nor would its practicability probably be strenuously questioned, if it were not for the fact, made far more important in the United States by the existence of the forty-five states with their separate legislation, that the manufacturer under the act may be exposed to the competition of manufacturers in other jurisdictions, whose liability remains as at common law. This objection necessarily applies to all legislation for the reform of industrial conditions. It has doubtless been urged in every state where laws have been passed for the restriction of child-labor, the limiting of hours, the providing of safety appliances, or any other reform law involving expense to the employer. In this case it was urged so effectively that the Massachusetts General Court of 1904 took no action on the recommendation of the committee. It is earnestly to be hoped, at least, that this Massachusetts report and proposed act may have the attention, not only from professed economists and reformers, but from lawyers and legislators, that the personal authority of the committee and the care and intelligence of their report amply warrant. I ought, perhaps, to add that the report (which I think can be obtained by any applicant from the Secretary of the Commonwealth, Boston) also discusses nearly all the burning questions of the day in regard to the relations between employers and employees, and proposes legislation in regard to several matters besides that here discussed. The entire report furnishes material for the careful consideration of those who are interested in the legislative problems created by recent industrial agitation. Epaphroditus Peck. PUTTING IN ONE'S OWN CASE ON CROSSEXAMINATION. 1. THE ORTHODOX Rule and the Federal RULE. The great question that arises as to the scope of the cross-examination is whether the opponent may, upon the cross-examination, elicit the witness' knowledge as to facts that constitute part of the opponent's own case, or whether he is confined to the matters already dealt with in the direct examination or, at least, to topics connected therewith. (a) In England, and in the United States down through the first quarter of the 1800s, there was apparently but one view upon this subject. There seems, indeed, to have been no question at all; so that in English judicial opinions an express statement of the rule is scarcely to be found. That rule-which may be termed the orthodox one-adopted the former of the above alternatives: 1829, Sutherland, J., in Fulton Bank v. Stafford, 2 Wend. 483. 485: "When a witness has been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but he may examine him as to any matter embraced in the issue. He may establish his defense by him without calling any other witnesses. If he is a competent witness to the jury for any purpose, he is so for all purposes." (6) But in the year 1827, Chief-Justice Gibson of Pennsylvania, in dealing with a related point, chanced to remark (without citing an authority) that, as the ordinary rule, the crossexamining party should not "prove his case by evidence extracted on cross-examination," and also that a witness may not be cross-examined to facts which are "wholly foreign to what he has already testified:" 1827, Gibson, C. J., in Ellmaker v. Buckley, 16 S. & R. 72, 77: "A witness may not be cross-examined to facts which are wholly foreign to the points in issue (and, I would add, to what he has already testified) for the purpose of contradicting him. by other evidence. In ordinary cases, the witness may be cross-examined by the party adverse to him whose wit |