and beneficial compensation law. The second problem is to determine how far insurance should be required to effectuate the purpose of the compensation law. Great care. must be exercised not to confuse these two problems; otherwise you are apt to sacrifice much of the good to be derived from a proper compensation law by muddling it in a harmful experiment in social insurance.

"Whether insurance should be compulsory or optional under the compensation law, is a question that should be determined by experience. It should be made compulsory only if and where reasonably necessary in order to assure to injured workmen the payment of their compensation. In no event, therefore, should those concerns that are amply able to carry their own insurance be required to buy insurance or to contribute to a state scheme; for that would be pure economic waste."

It is on this portion of Mr. Sherman's argument that the C. P. R. claims that it should have the right to provide its own insurance.

In commenting upon the Washington law Mr. Sherman said:

"One serious objection to the Washington law is that it makes an employer not only an insurer of his own workmen, but an insurer of the workmen of all his competitors in the same trade, thus multiplying his risk. It taxes him a heavy premium, but does not really insure him because he is subject to another assessment in case the funds run short."

THE BRITISH LAW.

Both the Washington and Ohio laws have been made attractive by their exceptionally low rates, but these are merely experimental rates, and cannot be maintained. Neither state board has published a report in the form and with the details required of private insurance companies. Under neither law has there been sufficient experience to justify any conclusion as to the sufficiency of the rates or the cost of the scheme.

The British law makes the employer directly liable for compensation to his injured workman and permits him to insure it or not as he chooses and how he chooses.

Sir William Meredith asked what would happen in case the employer broke down and fled from the country.

"The plant is always left," replied Mr. Sherman, "and the accident liability would be a preferred claim."

PREFERS ENGLISH LAW.

Mr. Sherman analyzed the German law in detail in an effort to shew how complicated it was and how unsuitable it would be in Ontario. When asked which one he preferred, he emphatically said that he preferred the British.

"The English law is comparatively simple," he said. "It imposes upon the employer a direct liability to compensate his employes for accidental injuries arising out of and in the course of their employment. The scale of compensation is approximately 50 per cent. of the estimated wage loss from injury, beginning at the end of the first week. and under conditions reverting back to the date of injury. The employer may insure or not at his option. Disputes. may be settled by arbitration. An employer and his workmen may by agreement substitute a scheme of mutual benefit insurance.

"From the foregoing the conclusion is obvious. For us to adopt substantially any integral part of the German workmen's insurance law would be a leap in the dark-it would be making the welfare of our people the playfield of impulsive experiment and would entail a radical change in our political principles and in our social and industrial habits and customs. Both the British and German laws, although in different ways and to different degrees, are products of gradual development. Even if our ideal be a system of broader and more perfect insurance than that provided by the British law, yet prudence dictates a course of gradual approach. The safest and most surely beneficial first step on that course would be the adoption of an adaptation of the earlier form of the British law."

VOL. XXXIII. C.L.T.--9

CROSS-EXAMINATION-ITS BENEFITS AND

DEFECTS.

BY ALBERT S. OSBORN.

Some cross-examination is unnecessarily cruel, much crossexamination is actually damaging to the case of the crossexaminer, and the great mass of cross-examination is useless. and utterly inane and silly.

The most unscientific work in the practice of the profession is undoubtedly done in cross-examination; it usually starts without plan or purpose; it arrives nowhere, and most of it should be omitted altogether. Silliness can be forgiven, the waste of time perhaps excused, but the unnecessary cruelty should be condemned and prevented.

The traditions of the law too often allow even the petty lawyer, who may be held in contempt by his neighbors, to stand behind the protecting shrubbery of legal precedent and throw mud at them as they pass by. Too often he is permitted to insult respectable men and sensitive women with an assurance, impunity, and brutality that is a sad commentary upon the profession.

Cross-examination is highly valuable, and an indispensable part of the conduct of a trial, but, like many good things, may be abused and diverted from its true purpose, which is to serve as an aid in eliciting truth and a means of promoting justice; too often it is used for exactly the opposite purpose. It would seem that the conscientious witness, who has told damaging truth, must be attacked, humiliated, and insulted, even if the testimony itself cannot be successfully assailed.

The inexperienced spectator of such a proceeding wonders that such things can be permitted in this enlightened age, and is astounded to learn that it is not only permitted to continue, but too often applauded by the profession. The lawyer, through familiarity with the spectacle, does not seem to be able to fully understand its enormity.

The Judge should be given greater control over this matter of cross-examination, as well as the whole conduct of a trial, and the sentiment of the profession should not simply frown upon, but should condemn, such flagrant, dishonest, and disgraceful acts.

Think of a merchant or a banker doing such things day after day and not being condemned! But in the lawyer it

too often is excused if not actually applauded by the profession.

By such methods fraud may actually win against the facts in what is called a Court of justice, and those who are thus defeated are inclined to say in earnest what the wag said in jest, that a Court is a place where justice is dispensedwith.

Cruel cross-examination of the honest witness should be prevented, and the flabby, inane, purposeless exhibitions of supposed rational men, which constitutes the bulk of the usual cross-examination, should be reduced in volume. In the investigation of the Titanic disaster, one witness was asked what an iceberg is composed of, and he promptly replied, "Ice."

Hundreds of questions of the most trivial, idiotic character are asked every day in Courts of law to no purpose, and great deserts and wastes of words are used in examinations like the following:

"Q. Where were you standing-in the road, or on the grass?

"A. On the grass.

"Q. Was the grass green or brown?

"A. Green.

'Q. Will you on your oath swear it was green (with great emphasis on swear)?

"A. Yes (very timidly).

"Q. Was it all green, or partly green (emphasis on 'all')? "A. All green (almost inaudible).

"Q. Do you not know that all grass is only partly green? "A. No (very low).

"Q. (with great severity and very loud). Are you as sure of what you have sworn to in this case as you are of the color of the grass that day?

"A. (very timidly). Yes, sir.

Q. That is all (with distinct emphasis on 'all')." The technical witness, who knows his rights and has told. the truth about a subject he understands much better than the examiner can hope to understand it, is, of course, able to protect himself, and can in most cases enforce his testimony. on cross-examination. He cannot always escape slurs, if not pen insults; but the average lawyer is at once at a disadVantage when he does not have for a victim the usual inex

perienced witness, who does not know his rights, and who can easily be taken advantage of.

It is seldom, indeed, that any but the greatest lawyers have the self-control and cool judgment not to cross-examine at all. The usual practice is to make copious notes of the testimony, much of it only half correct, and then carry the witness back over the whole story, thus making it clearer and stronger.

Lawyers as a rule resent hotly, any suggestion that the Judge should be given more power over the conduct of trials, and the Legislatures of many states, made up mostly of lawyers, have so restricted the power of the Judge that he is only a sort of moderator or umpire, whose business it is to keep order and prevent the lawyers from breaking up the furniture of the Court-house, and he must be very careful to do even this in a way that "does not prejudice the case before the jury."

The interests of justice would be promoted by restoring the old common-law powers to the Judge, as now exercised in Canada and England. When the old powers are restored, then all should unite to see that only the best possible Judges are selected. The capable, upright, unprejudiced, fearless Judge, whose hands are not tied, is the living embodiment of the spirit of justice, and an advocate not of a party of the first or the second part, but of the truth.

When we ourselves take a just cause into Court, we are not so much interested in the game the lawyers are playing with the law as we are to have justice done, and to see to it that honest witnesses are protected from biting sarcasm and bitter insult. One thing the upright and powerful Judge. can do is to protect the inexperienced, who are brought into Court to help prove the truth, and to cut short, or at least a little shorter, those spectacles in Courts of law called "crossexamination," that the angels must look down upon with pity and with horror.