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Workmen's Compensation Acts are often recorded as a sort of charity, a gratuity forced from the employers by legislative action. As a matter of fact, the employee has bought his right to compensation at a price. He has abandoned his right of suit at common law. It is true that the bargain on the whole is a good one looked at from the standpoint of the probabilities when he enters the employment. The chances are that any injury which he may receive will be due to some cause for which the employer would not at common law be responsible rather than that his injury will be one for which he could recover damages. Therefore, a bargain whereby he agrees to accept a moderate conpensation in lieu of his common law right to claim heavy damages if he can prove negligence on the part of his employer is at that time a good one. But, if he be injured under circumstances which would give him a right of action for damages, the bargain has turned out to be less favorable, and if he sustains through his employer's negligence a mutilation which did not affect his earning power, his bargain would prove an altogether bad one, since he would have given up his right of action in which his pain and suffering and the violation of the integrity of his body would have been elements of damage, and in return he obtains nothing, since the compensation law does not provide for the payment of any sum as compensation for such a mutilation. In such a case it is hard to convince the claimant that the bargain imposed by the legislature is not unfair to him. It would seem, therefore, that some provision ought to be made for minor mutilations and disfigurements irrespective of the loss of earning power that they may or may not entail. Of the two methods—the Illinois method seems preferable to that adopted in Massachusetts. The periods fixed as those during which compensation is to be paid for various mutilations are at best an attempt to strike a rough average between two extremes and in the case of serious mutilations the periods fixed probably do represent a reasonably fair estimate of probable effect of such mutilations. The loss of a finger presents a different case. While in almost all trades the loss of a hand, arm or eye is a serious injury to earning power, in many employments the loss of a finger has no effect at all upon the earning power, except in so far as it requires absence from work during the period of treatment, usually not more than two weeks. In other trades, to give an instance that of an engraver, the loss of a finger may degrade the sufferer at once from his position of skilled artisan and destroy all the value of years of training and experience. To give such a man four weeks' compensation as his exclusive remedy would be almost an insult, while to give a teamster for the loss of a finger an amount which would be fair to give to an engraver for a similar loss would be to overpay him to a ridiculous extent. It would seem, therefore, that the fairest method would be to make a provision for serious mutilations such as is found in the Pennsylvania Act and to add thereto additional compensation to be paid during a comparatively short period in addition to the payments on account of lost earning power to compensate those who suffer from minor disabilites and disfigurements.

The right of parents to compensation presents a somewhat similar problem. Since the right of the parents is derivative in character they are deprived of their right of action under these acts, in force in practically every state of the union which give, as Lord Campbell's Act in England gave, a right of action to members of the family of one killed by negligence or fault to compensate them for the loss of their interest in the earning power of the deceased. As the compensation act deprives them of the common law remedy it seems only fair that compensation should be secured to all members of the family who, but for the compensation acts, could have maintained suit under such death acts. In most of the compensation laws the parents are given the right to such compensation, if, but only if, they are dependent on the deceased employee for support. This has been considered and in all probability rightly considered as excluding parents though they had received money contribution prior to the death of their child and had every reason to expect them to continue, unless such contributions were necessary for their support. Thus there are many parents who are denied compensation who, but for the act, might have maintained an action under the death statutes. To remedy this, it would seem proper to either amend the act by striking out the words "for support" or to provide specifically that the receipt of contributions within a fixed period prior to the death of the deceased should be conclusive of the fact of dependency. One further question remains and it is, perhaps, the most important. Practically all American compensation laws place the jurisdiction of compensation claims in the common law courts of the state or provide for an appeal to such courts from the Board or Commission which administers the act. In some states, as in Pennsylvania, the appeal operates as a certiorari, the only matter brought up on appeal being the propriety of the Board's action on the face of the record. In others the appeal is a full appeal taking up not only the record but the testimony. While the former method has the advantage of saving cost it prevents the courts from reviewing the propriety of the Board's findings upon questions, not so much of fact, as of the sufficiency of the evidence to support their finding of fact. It is perhaps too much to trust to any Commission to make findings of fact which are incapable of review in any shape or form by appellate courts. It would seem, therefore, that an appeal, at least whenever there is allegation that the evidence does not support the findings of the Board, should take up not only the record but the evidence. Yet this involves a serious cost. If the cost of appeal be high, there is no question that it militates against claimants. The great majority of claims are made against employers covered by insurance. The companies which carry the insurance are possessed of ample funds and are fully able to meet the cost of appeal. The claimants, on the other hand, are generally in poor circumstances. The very accident out of which the claim arises has destroyed or diminished the earning power of the employee, if he is himself the claimant or if it has removed the breadwinner if the claimant is a dependent. The provision which often occurs in such acts, subjecting to the scrutiny of the Board the charge of attorneys for professional services, practically prohibits contingent fees of a size which would make it a good speculation for an attorney to take an appeal at his own cost. Indeed, the fact that the charges in each case are considered on the basis of the services rendered therein practically makes such contingent fees impossible, since the business of taking claims on such a basis is profitable only by reason of the fact that the amount realized from successful suits makes up for the expenses of those which fail. Thus even when the amount involved is large there will be many cases where the cost will prevent appeals, which if taken, would in all probability be successful. And where the amount in a particular case is small, but where the decision would decide a principle controlling a number of cases which in the aggregate involve a large sum, it can hardly be expected that an individual claimant whose stake in the matter is minute, will go to the expense of appeal to try out the principle, while on the other hand an insurance company which covers perhaps tens of thousands of employees will undoubtedly appeal a case of this sort, since its aggregate interest is more than sufficient to justify the expenditure.

Exactly what solution can be found for this difficulty it is hard to say. To make the state responsible for the cost of the claimant's appeal while leaving the defendant to bear their own cost would seem partisan and might stimulate frivolous appeals, while to make the state responsible for all costs, whether that of the defendant or claimant, would entail a heavy burden, and would lay the legislature open to the just criticism of treating compensation cases as a matter of state charity. Yet some solution of this problem must be found, if complete justice is to be done to both parties.

Francis H. Bohlen.
Law School
University of Pennsylvania.

PATRICK HENRY AND ST. GEORGE TUCKER.

I have in my possession three manuscript volumes, bound in sheep, entitled, “Notes of Cases.” On the first page of the first volume in the handwriting of St. George Tucker is the following:

"NOTES of certain decisions in the General Court, District Courts, and Court of Appeals in Virginia, from the year 1776 to 1811 the whole in three volumes preserved for my own use, and that of my own family-S. G. Tucker."

On the fly leaf of the first volume is written the following: “Bequeathed by the late William Green to his brother, James W. Green and by him presented to the Honorable J. Randolph Tucker, October 21, 1880. "

The notes give the style of the case, the pleadings therein, often the names of counsel, the points of argument of counsel on the pleadings, and opinion of the judge. The whole manuscript is perfectly written in a legible flowing hand. The handwriting is that of Judge Tucker. Examining these volumes I found on page 60 of the first volume this curious memorandum inserted in between the notes upon two different cases: “Memo, the late Gov. Henry came into court to acknowledge a Deed; he stood some moments near the Bar, but was not asked by the court to come upon the Bench. Oct. 17, 1787. Ex relatione Lee.” When my eye fell upon this memorandum in the examination of these notes, I read it again and again, and was at a loss to know what it meant. My first thought was of that much moot-question, who, if any, should be asked through courtesy to sit with the court, and that it was intended to show that the rule of the Virginia courts was against asking distinguished personages to sit with the judges on the bench. The custom of the courts throughout the United States on this question is quite different in different places. The Supreme Court of the United States, if I remember rightly, has asked the Lord Chief Justice

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