The attitude of the judiciary in matters involving class antagonisms is
a subject upon which only the most restrained language is tolerable.
Even general inferences which suggest such a thing as judicial bias
must be avoided. Faith in the rectitude and wisdom of our judges is
a virtue sedulously preached,--perhaps most insistently by those who
do most toward their corruption,--and though the virtue as we know
it is rather vocal than immanent, it is sufficiently deep-seated to
be intolerant of spoken heresy. Were it openly questioned by any
considerable body of citizens, the foolhardy persons would soon bring
down upon themselves the rallying onslaught of those heterogeneous
elements which Karl Marx somewhat extravagantly pictured, “landlords
and capitalists, stock-exchange wolves and shopkeepers, protectionists
and free-traders, government and opposition, priests and freethinkers,
young street-walkers and old nuns--under the common cry for the
salvation of property, religion, the family, and society.” Such
heretics might have all the certainty of Paul, “that the law is good,
if a man use it lawfully,” and yet it would be a parlous thing to be
openly sceptical of the assumption that it is always lawfully used.
But at least one may, without attainder of anarchy, assemble and
classify certain instances, and point out their coincidences and their
contrarieties. There is, for example, a notable sameness in kind of the
laws which are declared unconstitutional. There is, to utter it mildly,
a vast preponderance in the number of injunctions against striking,
boycotting, and agitating over the number against locking-out,
blacklisting, and the employment of armed mercenaries. There is a
practical, though not an entire, unanimity against the awarding of
damages to injured employees, whether the decision be based on common
or statute law; and, finally, there is a considerable diversity between
the decisions usually rendered by judges elected for short terms, and
therefore directly responsible to the people, and those rendered by the
less responsible judges, elected for long terms or appointed.
I
The legislative aspects of employers’ liability have already been
considered. Certain judicial aspects of the matter need also to be
touched upon. The question is one of grave social import. The worker
no longer owns his tools, but must use the machinery provided for
him. A certain element of danger inheres in the operation of probably
all machinery; but when old, defective, or with its dangerous parts
unguarded, injuries to its operatives are well-nigh certain. Yet for
such injuries, with their awful consequences to the operative and his
dependent ones, there is generally no redress, except in a few States
where statutes have fixed the matter of liability in set terms which
leave no room for judicial discretion.
Under the common law the workman is held to assume the risk attending
his employment. He is a free agent--so the legal fiction runs--and
if afraid of injury need not work. Common law also presupposes the
providing of a “reasonably safe” place and “reasonably safe” machinery
by the employer. It would be difficult to determine, however, from the
mass of decisions under the common law, what is meant by “reasonably
safe.” A Colorado lower court gave damages to the mother of a miner
killed by falling rock while removing débris from one of the mines of
the Moon-Anchor Consolidated Gold Mines, Limited. The case came finally
to the United States Circuit Court of Appeals for the Eighth District,
and the judgment was reversed, Judges Sanborn and Adams concurring and
Judge Thayer dissenting. The work was admittedly hazardous; in the
opinion of Judge Thayer “the place was needlessly made unsafe by the
master’s negligence.” The concurring judges, however, decided that the
company’s negligence was not responsible, and that “the deceased of his
own free will determined to cope with these risks and hazards.... In
this, his own voluntary conduct, is found the intervening, proximate,
and responsible cause of his injury.” (111 Federal Reporter, 298.)
Even when the employer assures the workman of the safety of a machine,
the risk is still, according to many decisions, the workman’s. The
Circuit Court of Shiawassee County, Michigan, refused to award damages
to a workman for injuries sustained from a defective machine which he
was operating for his employer. The case went to the Supreme Court on
a writ of error, and on December 15, 1900, that court affirmed the
previous judgment. It had been shown that the plaintiff warned his
employer of the danger of the machine, and that the employer gave
assurances to the contrary. Nevertheless, in the words of Judge Moon
(Moore?), “one cannot continue to operate a machine which he knows is
dangerous simply upon the assurance of his employer that it is not, if
he has just as much knowledge of the danger arising from the operation
of the machine as the principal has [without assuming the risk].” (82
N. W. Reporter, 1797.)
The decision, read by Judge McLennan, in the recent case of Rice _vs._
the Eureka Paper Company (76 App. Div. 336) before the Fourth Appellate
Division of New York State, would seem to indicate that the burden
of risk is not to be shifted from the workman even when his employer
acknowledges a defect in machinery and promises to remedy it. There is
some doubt, however, if such a decision, though valid in many States,
will stand in the State where it was given; for the Court of Appeals
has several times decided that liability follows from an acknowledgment
of defective machinery. On the other hand, this highest court of
New York State has won the distinction of carrying the doctrine of
assumption of risk to an extreme degree. The case of Gabrielson
_vs._ Waydell (135 N. Y. 1) involved the question of the liability of
the owners of a maritime vessel for injuries suffered by a sailor in
their employ. The captain of the vessel had committed a confessedly
unprovoked and particularly brutal assault upon the sailor, who had
subsequently sued the owner for damages. The court decided that the
sailor had no redress; that “the misconduct of the captain was a risk
assumed by the seaman, for the consequences of which the owners are not
responsible.”
A fact more curious yet to the unlegal mind is the judicial contention,
instanced in the previous chapter, that statutory provisions for the
safeguarding of machinery may be waived by the workman. Evidently
his burden of risk, like the Hindu’s caste, is born with him, and
cannot be laid aside or escaped. The case of the E. S. Higgins Carpet
Company _vs._ O’Keefe (79 Federal Reporter, 900) is an illustration.
Damages for an injury received from an unguarded machine had been
given a fifteen-year-old boy in the United States Circuit Court for
the Southern District of New York. The United States Circuit Court of
Appeals for the Second Circuit, however, reversed the judgment. The
plaintiff was a minor, but this fact was held to have no bearing. “We
think the circumstance that he was a minor of no importance,” read
the decision of Judge Wallace. “The rules which govern actions for
negligence in the case of children of tender years do not apply to
minors who have attained years of discretion.” The New York factory act
required guards for this particular kind of machine. But that, also,
was immaterial. “The provisions of the statute ... requiring cogs to
be properly guarded, have no application to the case, except as regards
the question of the negligence of the defendant. As construed by the
highest courts of the State, the statute does not impose any liability
upon an employer for injuries received by a minor in his service in
consequence of the fault of the employee, or arising from the obvious
risks of the service he has undertaken to perform.” To clinch the
matter, Judge Wallace cited the then recent case of Graves _vs._ Brewer
before the Fourth Appellate Division of New York State, wherein the
court held that “the liability of the employer was not changed by
reason of the factory act requiring cog-wheels to be covered, because
such protection could be waived and was waived by a person accepting
employment upon the machine with the cogs in an unguarded condition,
as the danger was apparent, and one of the obvious risks of the
employment.” The case of Knisley _vs._ Pratt (148 N. Y. 372) before the
New York Court of Appeals was decided in the same way, and also the
case of White _vs._ Witteman Lithographic Company. In the latter case
the plaintiff was a child of fourteen.
Such decisions are common in more States than one. Another case which
may prove of some interest to the lay mind is that of Gillen _vs._ the
Patten and Sherman Railroad Company (44 Atlantic Reporter, 361). The
plaintiff, while uncoupling cars, had his foot crushed in an unfilled
frog, and had been awarded damages. A motion for a new trial was
argued before the Supreme Judicial Court of Maine, and was granted.
The decision, delivered by Judge Lucilius A. Emery, acknowledged the
existence of a statute (chapter 216 of 1889) requiring the filling
or blocking of guard rails or frogs on all railways before January
1, 1890. It held, however, that such filling and blocking was not
immediately mandatory upon a railroad constructed after that date.
“Such company is entitled to a reasonable time for compliance with that
statute.” It was at a crossing of such a railway that the trainman lost
his foot. He had no right to assume that the rails were blocked, merely
because a statute said they should be. The brakeman, therefore, assumed
the risk, and he also furnished contributory negligence, since “to move
about over frogs and switches while coupling and uncoupling cars, even
in moving trains, without taking any thought of the frogs and guard
rails, or as to where he may be stepping, is negligence on his part
contributing to the catching his foot in them.”
When the doctrine of assumption of risk is inapplicable, when personal
negligence cannot be shown, and when there has been no waiving of
statutory provisions by the workman, there is yet, in judicial eyes,
one last resort for the defendant company--the common-law plea of
negligence on the part of a fellow-workman. There is some diversity of
opinion among eminent judges as to who are strictly fellow-servants.
“The courts of the majority of the States hold, however,” writes Mr.
Stephen D. Fessenden, in the _Bulletin_ of the Department of Labor for
November, 1900, “that the mere difference in grades of employment, or
in authority, with respect to each other, does not remove them from
the class of fellow-servants as regards the liability of the employer
for injuries to the one caused by the negligence of the other.” Thus
it has happened that a workman acting in the capacity of agent for his
employer, and ordering other workmen to do tasks at which injuries have
resulted, has been held to be a fellow-servant--a judgment relieving
his employer of liability. To the lay mind it would seem that workmen
in different departments could hardly be classed as fellow-servants;
and the United States Supreme Court has rendered a decision which makes
possible, under certain circumstances, such a discrimination. Since
then, however, the Federal courts have suffered a reaction on the
question, and current decisions tend the other way.
A case before a State tribunal--the Supreme Court of Georgia (35
Southeastern Reporter, 365)--illustrates the possibilities which lie
in this doctrine. A lineman, while repairing a wire for the Brush
Electric Light and Power Company, at Savannah, Ga., was killed through
the act of the engineer in turning on the current. The city court of
Savannah gave damages to his widow. The case was taken to the State
Supreme Court, and decision rendered March 3, 1900. The counsel for
the plaintiff contended that the fellow-servant doctrine could not
apply, on account of the lineman and engineer working in different
departments, “so that there was no opportunity for the exertion of a
mutual influence upon each other’s carefulness.” The court, however,
reversed the verdict.
The disparity of opinion between inferior judges and superior judges
in cases of this kind is remarkable. The monthly _Bulletins_ of the
Department of Labor give a fairly excellent summary of court decisions
on labor questions. He who reads them will find the expression,
“judgment of the lower court reversed,” recurring with a rather painful
iteration; unless, indeed, the decision of the lower court has rebuked
the plaintiff, when the expression, “judgment of the lower court
affirmed,” is usually found. Mr. George W. Alger, in an article on “The
Courts and Factory Legislation,” in the _American Journal of Sociology_
for November, 1900, gives the following careful and temperately worded
summary of recent reversals in employers’ liability cases in New York
State:--
“The percentage of reversals on appeal in master-and-servant cases of
this kind, when the verdict of the juries in the courts below had been
in plaintiff’s favor, is perhaps larger than in any other branch of
litigation. In New York, for example, an examination of twenty volumes
of the Court of Appeals reports (126 N. Y.-156 N. Y.) shows written
opinions in thirty-seven such cases. Of these: (1) in three cases
the juries in the lower court had found for defendant, and plaintiff
was the appellant; (2) in four cases the court below had dismissed
plaintiff’s case as insufficient, without requiring defendant to
introduce any testimony; (3) in thirty cases the juries below had found
for plaintiff with substantial damages. The Court of Appeals in class
(1) affirmed all of the cases where plaintiff was defeated below. In
class (2) it reversed the four cases where plaintiff had been summarily
non-suited and sent the cases back to trial courts to hear defendant’s
testimony: a partial victory at most for plaintiff. In class (3),
where plaintiff had actually received a verdict, of the thirty cases
twenty-eight were reversed. These statistics are interesting as showing
how complete is the lack of harmony between the courts, at least
in New York, and the moral sense of the people by whom the courts
were created, in regard to these cases. Twice in thirty times do the
opinions of the learned judges of New York’s highest court coincide
with the opinions of juries of citizens as to the requirements of
justice.”
The tendency, which is most clearly indicated by the mass of decisions
in cases demanding damages for injuries or death, is the growing
disposition to make property paramount and life subordinate. It is a
common practice to set aside verdicts of damages on the score that they
are excessive. It is no less a common practice to instruct the jury to
decide for the defendant in order to rebuke litigation. The language of
the leading work on one phase of this subject--Shearman and Redfield’s
“A Treatise on the Law of Negligence”--sums up the matter in a few
words:--
“It has become quite common for judges to state as the ground of
decisions the necessity of restricting litigation. Reduced to plain
English, this means the necessity of compelling the great majority of
men and women to submit to injustice in order to relieve judges from
the labor of awarding justice.... The stubborn resistance of business
corporations, common carriers, and mill-owners, to the enforcement
of the most moderate laws for the protection of human beings from
injury, and their utter failure to provide such protection of their
own accord, ought to satisfy any impartial judge that true justice
demands a constant expansion of the law in the direction of increased
responsibility for negligence.”
II
“Law,” wrote Sir Edward Coke, “is the perfection of reason.” This may
be true; but, if so, it tends to throw mankind over to the position of
the Catholics, that the reason itself needs considerable perfecting.
This is not only the disposition of the lay mind, but, evidently, also
of the supreme judicial mind; for a large part of the higher judicial
activity during recent years has been expended in declaring null and
void laws passed by two houses of the people’s representatives and
signed by an elected Governor or President. Mr. Stimson, in his summary
of labor legislation for the years 1887-97, found that only 114 out
of the 1639 laws passed had been declared unconstitutional. But these
114 comprised examples from 19 out of the 35 classes of legislation
passed, and must therefore have reacted upon a very considerable number
of the remainder. It is a coincidence which has been noted before,
and need not be specially insisted upon here, that the overwhelming
majority of laws which fail to reach the constitutional standards set
by our judges are those intended to safeguard the interests of the
industrially subordinate and to set some limitation to the powers of
the industrially mighty.
The judicial mind, however, affects to know no difference between high
and low, between weak and strong; and thus its decisions, ignoring
actual conditions, tend more and more to strengthen the powers of
one class and to weaken the powers of another. “Liberty” is the
shibboleth; the citizen must be free to act as he wills. Somewhat
curiously, though, liberty of speech, press, and assemblage is not
so strenuously insisted upon; and, indeed, by injunctions and other
judicial determinations is at times rather severely limited: the miners
of West Virginia have been recently enjoined from holding meetings on
their own grounds. But economic liberty--the liberty of the dependent
classes to do acts which, in the nature of things, they cannot possibly
do--is held for a sacred principle. The doctrine of the extension of
the State’s police power, limiting the foregoing doctrine, has gained
some headway since the Utah decision confirmed a State’s right to limit
the hours of work for men in dangerous trades; but the determination of
how far it is to be applied rests largely with the forty-eight State
and Territorial courts; and it is a safe guess that it will meet with
stiff resistance if incarnated in further “advanced” legislation.
“No discrimination,” which in effect means much discrimination, follows
the judicial shibboleth of “liberty.” Especially zealous for the
protection of liberty and keenly watchful of proposed discrimination
is that eminent tribunal, the Supreme Court of Illinois. Some six
years ago it discovered that the statute regulating the hours of
women workers in the factories contravened the Federal and State
constitutional guarantees of “life, liberty, and property.” A woman’s
labor was her property, and any limitation of it was a deprivation
“without due process of law.” On December 20, 1900, it fell to the lot
of this tribunal to pass upon two labor laws,--to the lay mind entirely
different in principle,--and, by a somewhat difficult struggling along
parallel lines of argument, triumphantly to reach conclusions adverse
to both of them. One was the Chicago ordinance requiring union labor
and an eight-hour day on all public work contracted for; the other
the State statute prohibiting discharge of an employee for belonging
to a labor union. Regarding the ordinance, the union requirement, in
the words of Associate Justice Magruder, “amounts to a discrimination
between different classes of citizens.” It is therefore void, and the
eight-hour provision is also void, because it “infringes upon the
freedom of contract, to which every citizen is entitled under the
law.... Any statute providing that the employer and laborer may not
agree with each other as to what time shall constitute a day’s work is
an invalid act.” (58 Northeastern Reporter, 985.)
Without venturing to discuss this ruling, one may at least compare it
with the ruling on the State statute. The latter was a law intended to
prevent discrimination against union men. But, curiously to the unlegal
mind, it is discovered to be discrimination in _favor_ of the union
man. “The act certainly does grant to that class of laborers who belong
to union labor organizations a special privilege.” (58 Northeastern
Reporter, 1007.) The act was also found to “contravene those
provisions of the State and Federal constitutions which guarantee that
no person shall be deprived of ‘life, liberty, or property without due
process of law.’” “That strain again,” as Orsino, in “Twelfth Night,”
exclaims. It has not, however, a “dying fall,” for it has been taken up
and echoed in other quarters since.
The liberty of the employer to pay his employees in brass checks or
store orders was affirmed by the Kansas Supreme Court on December
9, 1896, and the act requiring payment in lawful money was declared
invalid. “To say that a free citizen can contract for or agree to
receive in return for his labor one kind of property only, and that
which represents the smallest part of the aggregate wealth of the
country, is a clear restriction of the right to bargain and trade, a
suppression of individual effort, a denial of inalienable rights.”
Anti-truck acts were also declared unconstitutional by the courts of
Pennsylvania, Ohio, Illinois, and West Virginia. The Kentucky Supreme
Court, however, nine months after the Kansas decision, found that
liberty and the compulsory payment of wages in lawful money were
compatible, so that the question is at least open. Decisions like that
of the Kansas court, and the somewhat similar decisions rendered in
Pennsylvania, Illinois, and Tennessee, of course fasten the laborer to
the company store; but of this the courts usually take no cognizance.
Actual liberty may be restrained, but theoretical liberty must not be
tampered with.
Weekly payment laws are found to conflict with liberty in Pennsylvania,
Illinois, Missouri, West Virginia, and Indiana. Moreover, the liberty
of a legislature to determine that prevailing wages shall be paid to
employees of city and State must not be confused by the lay mind with
the liberty of the wage-earner to work under what conditions he must.
For the former is clearly unconstitutional, as decided in New York by
the Court of Appeals in February, 1901. “The effect of this statute
[the Prevailing Rate of Wages act],” reads the decision of Judge Denis
O’Brien, “was to make the city [of New York] a trustee or instrument
for the enforcement of the law in the interests of the persons for
whose benefit it was enacted, and thus the powers and functions of the
municipality are employed for purposes foreign to those for which they
were created and exist under the Constitution.” The eight-hour laws
passed in several of the States have generally suffered the Illinois
fate, although Kansas proved an exception. Regulation of the working
hours of women was nullified not only in Illinois, but in Nebraska
and California. The police-power doctrine, as voiced in the Utah
decision, may justify a limitation of the working day in dangerous
trades, but otherwise such a limitation appears to be an infringement
of the right of contract, or a deprivation of “property” without “due
process of law.” Even the National Eight-hour law of 1868, while not
strictly unconstitutional, is held to be merely advisory. “We regard
the statute,” says the Supreme Court (94 U. S. 404), “chiefly as in the
nature of a direction from the principal to his agent that eight hours
is deemed to be a proper length of time for a day’s labor, and that his
contract shall be based upon that theory.”
Anti-trust laws may be quite as lacking in constitutional decorum as
are eight-hour and prevailing-wages laws; and the judiciary reserves
to itself the right to determine what are the standards. The Texas
Anti-trust law of 1889, for instance, overleapt judicial sanction. “It
is not every restriction of competition or trade,” reads the decision
of District Judge Charles Swayne (February 22, 1897), “that is illegal
or against public policy, or that will justify police regulation, but
only such as are unwarrantable or oppressive; and a State statute which
prohibits combinations formed for the purpose of reasonably restricting
competition violates the rights of contracts guaranteed by the Federal
Constitution.” (79 Federal Reporter, 627.) Another legislature, with
this lesson before it, will know better where to set bounds to its
attempt at interference.
One cannot pass this phase of the general subject without recurring to
the pertinent advice of the wise Sir Francis Bacon. “Judges,” he wrote
in his essay, “Of Judicature,” “ought to remember that their office is
_jus dicere_, and not _jus dare_, to interpret law, and not to make
law.... Judges ought to be more learned than witty, more reverend than
plausible, and more advised than confident.... A judge ought to prepare
his way to a just sentence, as God useth to prepare his way, by raising
valleys and taking down hills; so when there appeareth on either side
a high hand, ... cunning advantages taken, combination, power, great
counsel, then is the virtue of a judge seen to make inequality equal;
that he may paint his judgment as upon an even ground.” Wise counsel!
though it seems to have lacked something in observance two hundred and
seventy-five years ago, and may be suspected, even yet, of not always
and everywhere reaching entire fulfilment.
III
We have the testimony of no less eminent an authority than United
States District Judge John J. Jackson, of the Northern District of
West Virginia, that in all his experience on the bench he could not
recall a single occasion when any court, either Federal or State, ever
abused the writ of injunction in strike questions. It is a definite and
authoritative pronouncement; and the restrained and careful language
accompanying it, wherein the officials of labor unions are described
as “a professional set of agitators,” and “vampires that fatten on the
honest labor of the coal miners,” certainly proves that it cannot be
an _ex parte_ statement. Yet, for all that, there is a widely diffused
sentiment that the writ of injunction has occasionally been abused in
strike questions. In the same locality, at about the same time, an
injunction issued by United States District Judge B. F. Keller, of the
Southern District of West Virginia, declared, among a multitude of
other prohibitions, that the strikers “are further inhibited, enjoined,
and restrained from assembling in camp or otherwise,” even on grounds
leased by them for their meetings.
A pamphlet, prepared by five members of the New York Bar and issued
by the Social Reform Club, of New York City, in the summer of 1900,
gives the substance of a number of injunctions that have been issued
against striking workmen. “In the case of the Sun Printing and
Publishing Company _vs._ Delaney and others in December (1899),” says
the pamphlet:--
“The Supreme Court of New York, among other things, enjoined the
defendants from the exercise of their right to give the public
their side of the controversy with the _Sun_ as an argument against
advertising in a paper which they claimed had treated them unjustly; it
also forbade them from attempting to persuade newsdealers from selling
the paper; and finally wound up with a sweeping restraint ‘from in
any other manner or by any other means interfering with the property,
property rights, or business of the plaintiff.’ It should be added
that, on appeal, the Appellate Division struck out these commands;
but they were so plainly subversive of fundamental rights that it is
difficult to see how they could have been granted in the first instance.
“In still another case last year--The Wheeling Railway Company _vs._
John Smith and others (so runs the title of the action without naming
the others)--in the United States Circuit Court, West Virginia, two
men not parties to the action, nor found to be agents of ‘John Smith
and others,’ whoever they may have been, were punished for contempt of
court, for, among other things, ‘reviling’ and ‘cursing’ the court?
not at all, but for ‘reviling’ and ‘cursing’ employees of the railroad
company. If these men had not actually served out an imprisonment in
jail for thirty days as a punishment for contempt of corporation,
it might be thought that your committee had taken this example from
opera bouffe. The legality of this punishment was never passed on by
the Supreme Court, for the reason, as your committee understand, that
the parties were unable to bear the expense of taking it there, and so
served their term in jail.
“During the final drafting of our report a temporary injunction has
been granted by a Justice of the Supreme Court in New York City....
This injunction forbids the defendants [certain members of the Cigar
Makers’ International Union] even from approaching their former
employers for the laudable purpose of reaching an amicable result; it
forbids them from making their case known to the public if the tendency
of that is to vex the plaintiffs or make them uneasy; it forbids them
from trying in a perfectly peaceable way in any place in the city, even
in the privacy of a man’s own home, to persuade a new employee that
justice is on their side, and that he ought to sympathize with them
sufficiently not to work for unjust employers; and, finally, it forbids
the union from paying money to the strikers to support their families
during the strike.”
Such instances, as the pamphlet states, can be multiplied. Perhaps they
do not wholly controvert Judge Jackson’s declaration. But, at least,
they illustrate an unbridgeable disparity between the definitions of
justice held on the one hand by our interpreters of law, and on the
other by the overwhelming majority of the citizenship. That disparity
has been great in all recent times; but weekly and daily it grows
greater. The stronger inclination of the judiciary to make property the
paramount interest is everywhere observed; and the magnates, with an
exultant recognition of the fact, make haste to enjoy the fruits of the
new dispensation.
IV
From judgeship to attorneyship of a great corporation has recently
become a common promotion. The number of ex-judges who have been thus
translated to higher sees is notable: one finds or hears of them in
many places. Republics may be ungrateful, as the adage runs, but
not so the magnates. The gratitude of the latter may not be wholly
platonic; it includes, no doubt, a lively sense of favors to come. But
whether prospective or retrospective, it expresses itself in deeds
of recompense, and that is the main test. It is a discriminating
gratitude, moreover. Keenly enough, it recognizes the comparative
value of service. Other servitors of the magnates may toil faithfully,
and receive but moderate reward. The moulders of opinion, such, for
instance, as the newspaper men, may ask for preferment, and be met by
the impatient retort of Richard III to Buckingham, “I am not in the
giving vein to-day.” But for one who can interpret the law as it should
be interpreted, there are glory and riches to be had for the asking.