I most earnestly urge upon the Congress the duty of increasing the
totally inadequate salaries now given to our Judges. On the whole there
is no body of public servants who do as valuable work, nor whose
moneyed reward is so inadequate compared to their work. Beginning with
the Supreme Court, the Judges should have their salaries doubled. It is
not befitting the dignity of the Nation that its most honored public
servants should be paid sums so small compared to what they would earn
in private life that the performance of public service by them implies
an exceedingly heavy pecuniary sacrifice.
It is earnestly to be desired that some method should be devised for
doing away with the long delays which now obtain in the administration
of justice, and which operate with peculiar severity against persons of
small means, and favor only the very criminals whom it is most
desirable to punish. These long delays in the final decisions of cases
make in the aggregate a crying evil; and a remedy should be devised.
Much of this intolerable delay is due to improper regard paid to
technicalities which are a mere hindrance to justice. In some noted
recent cases this over-regard for technicalities has resulted in a
striking denial of justice, and flagrant wrong to the body politic.
At the last election certain leaders of organized labor made a violent
and sweeping attack upon the entire judiciary of the country, an attack
couched in such terms as to include the most upright, honest and
broad-minded judges, no less than those of narrower mind and more
restricted outlook. It was the kind of attack admirably fitted to
prevent any successful attempt to reform abuses of the judiciary,
because it gave the champions of the unjust judge their eagerly desired
opportunity to shift their ground into a championship of just judges
who were unjustly assailed. Last year, before the House Committee on
the Judiciary, these same labor leaders formulated their demands,
specifying the bill that contained them, refusing all compromise,
stating they wished the principle of that bill or nothing. They
insisted on a provision that in a labor dispute no injunction should
issue except to protect a property right, and specifically provided
that the right to carry on business should not be construed as a
property right; and in a second provision their bill made legal in a
labor dispute any act or agreement by or between two or more persons
that would not have been unlawful if done by a single person. In other
words, this bill legalized blacklisting and boycotting in every form,
legalizing, for instance, those forms of the secondary boycott which
the anthracite coal strike commission so unreservedly condemned; while
the right to carry on a business was explicitly taken out from under
that protection which the law throws over property. The demand was made
that there should be trial by jury in contempt cases, thereby most
seriously impairing the authority of the courts. All this represented a
course of policy which, if carried out, would mean the enthronement of
class privilege in its crudest and most brutal form, and the
destruction of one of the most essential functions of the judiciary in
all civilized lands.
The violence of the crusade for this legislation, and its complete
failure, illustrate two truths which it is essential our people should
learn. In the first place, they ought to teach the workingman, the
laborer, the wageworker, that by demanding what is improper and
impossible he plays into the hands of his foes. Such a crude and
vicious attack upon the courts, even if it were temporarily successful,
would inevitably in the end cause a violent reaction and would band the
great mass of citizens together, forcing them to stand by all the
judges, competent and incompetent alike, rather than to see the wheels
of justice stopped. A movement of this kind can ultimately result in
nothing but damage to those in whose behalf it is nominally undertaken.
This is a most healthy truth, which it is wise for all our people to
learn. Any movement based on that class hatred which at times assumes
the name of "class consciousness" is certain ultimately to fail, and if
it temporarily succeeds, to do far-reaching damage. "Class
consciousness," where it is merely another name for the odious vice of
class selfishness, is equally noxious whether in an employer's
association or in a workingman's association. The movement in question
was one in which the appeal was made to all workingmen to vote
primarily, not as American citizens, but as individuals of a certain
class in society. Such an appeal in the first place revolts the more
high-minded and far-sighted among the persons to whom it is addressed,
and in the second place tends to arouse a strong antagonism among all
other classes of citizens, whom it therefore tends to unite against the
very organization on whose behalf it is issued. The result is therefore
unfortunate from every standpoint. This healthy truth, by the way, will
be learned by the socialists if they ever succeed in establishing in
this country an important national party based on such class
consciousness and selfish class interest.
The wageworkers, the workingmen, the laboring men of the country, by
the way in which they repudiated the effort to get them to cast their
votes in response to an appeal to class hatred, have emphasized their
sound patriotism and Americanism. The whole country has cause to fell
pride in this attitude of sturdy independence, in this uncompromising
insistence upon acting simply as good citizens, as good Americans,
without regard to fancied--and improper--class interests. Such an
attitude is an object-lesson in good citizenship to the entire nation.
But the extreme reactionaries, the persons who blind themselves to the
wrongs now and then committed by the courts on laboring men, should
also think seriously as to what such a movement as this portends. The
judges who have shown themselves able and willing effectively to check
the dishonest activity of the very rich man who works iniquity by the
mismanagement of corporations, who have shown themselves alert to do
justice to the wageworker, and sympathetic with the needs of the mass
of our people, so that the dweller in the tenement houses, the man who
practices a dangerous trade, the man who is crushed by excessive hours
of labor, feel that their needs are understood by the courts--these
judges are the real bulwark of the courts; these judges, the judges of
the stamp of the president-elect, who have been fearless in opposing
labor when it has gone wrong, but fearless also in holding to strict
account corporations that work iniquity, and far-sighted in seeing that
the workingman gets his rights, are the men of all others to whom we
owe it that the appeal for such violent and mistaken legislation has
fallen on deaf ears, that the agitation for its passage proved to be
without substantial basis. The courts are jeopardized primarily by the
action of those Federal and State judges who show inability or
unwillingness to put a stop to the wrongdoing of very rich men under
modern industrial conditions, and inability or unwillingness to give
relief to men of small means or wageworkers who are crushed down by
these modern industrial conditions; who, in other words, fail to
understand and apply the needed remedies for the new wrongs produced by
the new and highly complex social and industrial civilization which has
grown up in the last half century.
The rapid changes in our social and industrial life which have attended
this rapid growth have made it necessary that, in applying to concrete
cases the great rule of right laid down in our Constitution, there
should be a full understanding and appreciation of the new conditions
to which the rules are to be applied. What would have been an
infringement upon liberty half a century ago may be the necessary
safeguard of liberty to-day. What would have been an injury to property
then may be necessary to the enjoyment of property now. Every judicial
decision involves two terms--one, as interpretation of the law; the
other, the understanding of the facts to which it is to be applied. The
great mass of our judicial officers are, I believe, alive to those
changes of conditions which so materially affect the performance of
their judicial duties. Our judicial system is sound and effective at
core, and it remains, and must ever be maintained, as the safeguard of
those principles of liberty and justice which stand at the foundation
of American institutions; for, as Burke finely said, when liberty and
justice are separated, neither is safe. There are, however, some
members of the judicial body who have lagged behind in their
understanding of these great and vital changes in the body politic,
whose minds have never been opened to the new applications of the old
principles made necessary by the new conditions. Judges of this stamp
do lasting harm by their decisions, because they convince poor men in
need of protection that the courts of the land are profoundly ignorant
of and out of sympathy with their needs, and profoundly indifferent or
hostile to any proposed remedy. To such men it seems a cruel mockery to
have any court decide against them on the ground that it desires to
preserve "liberty" in a purely technical form, by withholding liberty
in any real and constructive sense. It is desirable that the
legislative body should possess, and wherever necessary exercise, the
power to determine whether in a given case employers and employees are
not on an equal footing, so that the necessities of the latter compel
them to submit to such exactions as to hours and conditions of labor as
unduly to tax their strength; and only mischief can result when such
determination is upset on the ground that there must be no
"interference with the liberty to contract"--often a merely academic
"liberty," the exercise of which is the negation of real liberty.
There are certain decisions by various courts which have been
exceedingly detrimental to the rights of wageworkers. This is true of
all the decisions that decide that men and women are, by the
Constitution, "guaranteed their liberty" to contract to enter a
dangerous occupation, or to work an undesirable or improper number of
hours, or to work in unhealthy surroundings; and therefore can not
recover damages when maimed in that occupation and can not be forbidden
to work what the legislature decides is an excessive number of hours,
or to carry on the work under conditions which the legislature decides
to be unhealthy. The most dangerous occupations are often the poorest
paid and those where the hours of work are longest; and in many cases
those who go into them are driven by necessity so great that they have
practically no alternative. Decisions such as those alluded to above
nullify the legislative effort to protect the wage-workers who most
need protection from those employers who take advantage of their
grinding need. They halt or hamper the movement for securing better and
more equitable conditions of labor. The talk about preserving to the
misery-hunted beings who make contracts for such service their
"liberty" to make them, is either to speak in a spirit of heartless
irony or else to show an utter lack of knowledge of the conditions of
life among the great masses of our fellow-countrymen, a lack which
unfits a judge to do good service just as it would unfit any executive
or legislative officer.
There is also, I think, ground for the belief that substantial
injustice is often suffered by employees in consequence of the custom
of courts issuing temporary injunctions without notice to them, and
punishing them for contempt of court in instances where, as a matter of
fact, they have no knowledge of any proceedings. Outside of organized
labor there is a widespread feeling that this system often works great
injustice to wageworkers when their efforts to better their working
condition result in industrial disputes. A temporary injunction
procured ex parte may as a matter of fact have all the effect of a
permanent injunction in causing disaster to the wageworkers' side in
such a dispute. Organized labor is chafing under the unjust restraint
which comes from repeated resort to this plan of procedure. Its
discontent has been unwisely expressed, and often improperly expressed,
but there is a sound basis for it, and the orderly and law-abiding
people of a community would be in a far stronger position for upholding
the courts if the undoubtedly existing abuses could be provided
against.
Such proposals as those mentioned above as advocated by the extreme
labor leaders contain the vital error of being class legislation of the
most offensive kind, and even if enacted into law I believe that the
law would rightly be held unconstitutional. Moreover, the labor people
are themselves now beginning to invoke the use of the power of
injunction. During the last ten years, and within my own knowledge, at
least fifty injunctions have been obtained by labor unions in New York
City alone, most of them being to protect the union label (a "property
right"), but some being obtained for other reasons against employers.
The power of injunction is a great equitable remedy, which should on no
account be destroyed. But safeguards should be erected against its
abuse. I believe that some such provisions as those I advocated a year
ago for checking the abuse of the issuance of temporary injunctions
should be adopted. In substance, provision should be made that no
injunction or temporary restraining order issue otherwise than on
notice, except where irreparable injury would otherwise result; and in
such case a hearing on the merits of the order should be had within a
short fixed period, and, if not then continued after hearing, it should
forthwith lapse. Decisions should be rendered immediately, and the
chance of delay minimized in every way. Moreover, I believe that the
procedure should be sharply defined, and the judge required minutely to
state the particulars both of his action and of his reasons therefor,
so that the Congress can, if it desires, examine and investigate the
same.
The chief lawmakers in our country may be, and often are, the judges,
because they are the final seat of authority. Every time they interpret
contract, property, vested rights, due process of law, liberty, they
necessarily enact into law parts of a system of social philosophy, and
as such interpretation is fundamental, they give direction to all
law-making. The decisions of the courts on economic and social
questions depend upon their economic and social philosophy; and for the
peaceful progress of our people during the twentieth century we shall
owe most to those judges who hold to a twentieth century economic and
social philosophy and not to a long outgrown philosophy, which was
itself the product of primitive economic conditions. Of course a
judge's views on progressive social philosophy are entirely second in
importance to his possession of a high and fine character; which means
the possession of such elementary virtues as honesty, courage, and
fair-mindedness. The judge who owes his election to pandering to
demagogic sentiments or class hatreds and prejudices, and the judge who
owes either his election or his appointment to the money or the favor
of a great corporation, are alike unworthy to sit on the bench, are
alike traitors to the people; and no profundity of legal learning, or
correctness of abstract conviction on questions of public policy, can
serve as an offset to such shortcomings. But it is also true that
judges, like executives and legislators, should hold sound views on the
questions of public policy which are of vital interest to the people.
The legislators and executives are chosen to represent the people in
enacting and administering the laws. The judges are not chosen to
represent the people in this sense. Their function is to interpret the
laws. The legislators are responsible for the laws; the judges for the
spirit in which they interpret and enforce the laws. We stand aloof
from the reckless agitators who would make the judges mere pliant tools
of popular prejudice and passion; and we stand aloof from those equally
unwise partisans of reaction and privilege who deny the proposition
that, inasmuch as judges are chosen to serve the interests of the whole
people, they should strive to find out what those interests are, and,
so far as they conscientiously can, should strive to give effect to
popular conviction when deliberately and duly expressed by the
lawmaking body. The courts are to be highly commended and staunchly
upheld when they set their faces against wrongdoing or tyranny by a
majority; but they are to be blamed when they fail to recognize under a
government like ours the deliberate judgment of the majority as to a
matter of legitimate policy, when duly expressed by the legislature.
Such lawfully expressed and deliberate judgment should be given effect
by the courts, save in the extreme and exceptional cases where there
has been a clear violation of a constitutional provision. Anything like
frivolity or wantonness in upsetting such clearly taken governmental
action is a grave offense against the Republic. To protest against
tyranny, to protect minorities from oppression, to nullify an act
committed in a spasm of popular fury, is to render a service to the
Republic. But for the courts to arrogate to themselves functions which
properly belong to the legislative bodies is all wrong, and in the end
works mischief. The people should not be permitted to pardon evil and
slipshod legislation on the theory that the court will set it right;
they should be taught that the right way to get rid of a bad law is to
have the legislature repeal it, and not to have the courts by ingenious
hair-splitting nullify it. A law may be unwise and improper; but it
should not for these reasons be declared unconstitutional by a strained
interpretation, for the result of such action is to take away from the
people at large their sense of responsibility and ultimately to destroy
their capacity for orderly self restraint and self government. Under
such a popular government as ours, rounded on the theory that in the
long run the will of the people is supreme, the ultimate safety of the
Nation can only rest in training and guiding the people so that what
they will shall be right, and not in devising means to defeat their
will by the technicalities of strained construction.
For many of the shortcomings of justice in our country our people as a
whole are themselves to blame, and the judges and juries merely bear
their share together with the public as a whole. It is discreditable to
us as a people that there should be difficulty in convicting murderers,
or in bringing to justice men who as public servants have been guilty
of corruption, or who have profited by the corruption of public
servants. The result is equally unfortunate, whether due to
hairsplitting technicalities in the interpretation of law by judges, to
sentimentality and class consciousness on the part of juries, or to
hysteria and sensationalism in the daily press. For much of this
failure of justice no responsibility whatever lies on rich men as such.
We who make up the mass of the people can not shift the responsibility
from our own shoulders. But there is an important part of the failure
which has specially to do with inability to hold to proper account men
of wealth who behave badly.
The chief breakdown is in dealing with the new relations that arise
from the mutualism, the interdependence of our time. Every new social
relation begets a new type of wrongdoing--of sin, to use an
old-fashioned word--and many years always elapse before society is able
to turn this sin into crime which can be effectively punished at law.
During the lifetime of the older men now alive the social relations
have changed far more rapidly than in the preceding two centuries. The
immense growth of corporations, of business done by associations, and
the extreme strain and pressure of modern life, have produced
conditions which render the public confused as to who its really
dangerous foes are; and among the public servants who have not only
shared this confusion, but by some of their acts have increased it, are
certain judges. Marked inefficiency has been shown in dealing with
corporations and in re-settling the proper attitude to be taken by the
public not only towards corporations, but towards labor and towards the
social questions arising out of the factory system and the enormous
growth of our great cities.
The huge wealth that has been accumulated by a few individuals of
recent years, in what has amounted to a social and industrial
revolution, has been as regards some of these individuals made possible
only by the improper use of the modern corporation. A certain type of
modern corporation, with its officers and agents, its many issues of
securities, and its constant consolidation with allied undertakings,
finally becomes an instrument so complex as to contain a greater number
of elements that, under various judicial decisions, lend themselves to
fraud and oppression than any device yet evolved in the human brain.
Corporations are necessary instruments of modern business. They have
been permitted to become a menace largely because the governmental
representatives of the people have worked slowly in providing for
adequate control over them.
The chief offender in any given case may be an executive, a
legislature, or a judge. Every executive head who advises violent,
instead of gradual, action, or who advocates ill-considered and
sweeping measures of reform (especially if they are tainted with
vindictiveness and disregard for the rights of the minority) is
particularly blameworthy. The several legislatures are responsible for
the fact that our laws are often prepared with slovenly haste and lack
of consideration. Moreover, they are often prepared, and still more
frequently amended during passage, at the suggestion of the very
parties against whom they are afterwards enforced. Our great clusters
of corporations, huge trusts and fabulously wealthy multi-millionaires,
employ the very best lawyers they can obtain to pick flaws in these
statutes after their passage; but they also employ a class of secret
agents who seek, under the advice of experts, to render hostile
legislation innocuous by making it unconstitutional, often through the
insertion of what appear on their face to be drastic and sweeping
provisions against the interests of the parties inspiring them; while
the demagogues, the corrupt creatures who introduce blackmailing
schemes to "strike" corporations, and all who demand extreme, and
undesirably radical, measures, show themselves to be the worst enemies
of the very public whose loud-mouthed champions they profess to be. A
very striking illustration of the consequences of carelessness in the
preparation of a statute was the employers' liability law of 1906. In
the cases arising under that law, four out of six courts of first
instance held it unconstitutional; six out of nine justices of the
Supreme Court held that its subject-matter was within the province of
congressional action; and four of the nine justices held it valid. It
was, however, adjudged unconstitutional by a bare majority of the
court--five to four. It was surely a very slovenly piece of work to
frame the legislation in such shape as to leave the question open at
all.
Real damage has been done by the manifold and conflicting
interpretations of the interstate commerce law. Control over the great
corporations doing interstate business can be effective only if it is
vested with full power in an administrative department, a branch of the
Federal executive, carrying out a Federal law; it can never be
effective if a divided responsibility is left in both the States and
the Nation; it can never be effective if left in the hands of the
courts to be decided by lawsuits.
The courts hold a place of peculiar and deserved sanctity under our
form of government. Respect for the law is essential to the permanence
of our institutions; and respect for the law is largely conditioned
upon respect for the courts. It is an offense against the Republic to
say anything which can weaken this respect, save for the gravest reason
and in the most carefully guarded manner. Our judges should be held in
peculiar honor; and the duty of respectful and truthful comment and
criticism, which should be binding when we speak of anybody, should be
especially binding when we speak of them. On an average they stand
above any other servants of the community, and the greatest judges have
reached the high level held by those few greatest patriots whom the
whole country delights to honor. But we must face the fact that there
are wise and unwise judges, just as there are wise and unwise
executives and legislators. When a president or a governor behaves
improperly or unwisely, the remedy is easy, for his term is short; the
same is true with the legislator, although not to the same degree, for
he is one of many who belong to some given legislative body, and it is
therefore less easy to fix his personal responsibility and hold him
accountable therefor. With a judge, who, being human, is also likely to
err, but whose tenure is for life, there is no similar way of holding
him to responsibility. Under ordinary conditions the only forms of
pressure to which he is in any way amenable are public opinion and the
action of his fellow judges. It is the last which is most immediately
effective, and to which we should look for the reform of abuses. Any
remedy applied from without is fraught with risk. It is far better,
from every standpoint, that the remedy should come from within. In no
other nation in the world do the courts wield such vast and
far-reaching power as in the United States. All that is necessary is
that the courts as a whole should exercise this power with the
farsighted wisdom already shown by those judges who scan the future
while they act in the present. Let them exercise this great power not
only honestly and bravely, but with wise insight into the needs and
fixed purposes of the people, so that they may do justice and work
equity, so that they may protect all persons in their rights, and yet
break down the barriers of privilege, which is the foe of right.