this country in labor disputes and that a number of injunctions
have been issued which ought never to have been issued. I agree
that there has been abuse in this regard. President Roosevelt
referred to it in his last message. I think it has grown largely
from the practice of issuing injunctions _ex parte_, that is,
without giving notice or hearing to the defendants.... Under the
original Federal judiciary act it was not permissible for the
Federal courts to issue an injunction without notice. There had to
be notice, and, of course, a hearing. I think it would be entirely
right in this class of cases to amend the law and provide that no
temporary restraining order should issue until after notice and a
hearing.
He at the same time expressed himself in favor of having contempt
proceedings for violations of injunctions heard by a judge other than
the one who issued the injunction. But to the proposal that in such
cases the ancient power of the courts to protect their own dignity
and authority be taken from them and turned over to juries of laymen
selected by interested parties and subject to all the passions and
prejudices inevitable in such trials--to this he is opposed.
_The Laborer's Right to Protection_
One decision of Judge Taft's on a highly important labor question has
been generally overlooked and deserves mention. The interests of
labor in the law are not confined to strike questions. Its rights
in peace are no less important than in war. The working people are
deeply interested in the enforcement of laws which protect them
against unnecessary dangers in employment. The position of Judge Taft
on this important question is best shown by the contrast made by
one of his decisions (Narramore vs. C., C., C. & St. Louis Railroad
Co.) with the leading case in New York on the same subject. Both of
these cases involve statutes directing employers to furnish certain
specific protection for the safety of employees. In both cases the
employer failed to obey the law which required the furnishing of that
protection. The New York Court of Appeals decided that notwithstanding
the statute, if the employee _stayed at work_ knowing that the
employer had not obeyed the law, and knowing the danger created by the
employer's failure to obey the law, by the mere fact of his remaining
at work, the employee assumed as a matter of law the risks of being
injured and could have no claims against the employer for injuries so
sustained. This construction obviously makes the protective statute a
dead letter and absolutely worthless.
Judge Taft, in a case in which this same reasoning was advanced, and in
which the decision of this New York Court of Appeals was cited as an
authority, refused to follow it and rendered a decision which leaves
full vitality to protective legislation. The case was one in which a
railroad company had failed to obey the law which required it to fill
or block frogs and furnish guard rails on their tracks. The plaintiff,
a railway employee, kept at work, knowing that the frogs were not
blocked, and was hurt through the absence of the protection which the
statute required the railroad to furnish him. He had a verdict from
the jury, the railroad appealed, and its lawyer, Judson Harmon, argued
that the verdict should be set aside because the man had kept at work
knowing the railroad's violation of the law, and had therefore by legal
implication contracted with the railroad to take all the chances of
being hurt. Judge Taft refused to follow the New York case, declaring:
The only ground for passing such a statute is found in the
inequality of terms upon which the railroad company and its
servants deal in regard to the dangers of their employment.
The manifest legislative purpose was to protect the servant by
positive law, because he had not previously shown himself capable
of protecting himself by contract, and it would entirely defeat
its purpose thus to permit the servant to contract the master out
of the statute.
This case has been cited all over the United States by counsel for
workmen injured through the failure of their employers to furnish the
protection required by statute for their safety. Perhaps a majority
of the State courts follow the New York case, and say that protective
legislation intended for the benefit of working men at work is of
no legal value to them if they stay at work. The legal theory on
which the workman assumes the risks of personal injury need not here
be discussed. Judge Taft, however, decided that when a law is made
applying to a dangerous business, in which four thousand men are killed
and sixty-five thousand are injured every year, the intention was that
the railroads should obey that law, and it should not be nullified "by
construction." In this conclusion he does not lack judicial support of
high character.
This, in substance, is Taft's labor record so far as his judicial
career is concerned. Its consideration by the general public can
be useful but for one purpose, which is this: A country like ours
cannot afford to elect a class president. It cannot afford to elect
a president in whose mind the distinction between lawlessness and
personal rights is not clear and distinct; who to please one class will
weaken the foundations of the liberty and peace of a whole nation. It
can still less afford to elect a president to whom the working people
are but pawns on the chess-board, and to whom prosperity means peace
at any price by the sacrifice of the rights of the working people, so
long as the mills are at work and property is secure in the possessions
which it has somehow acquired. The enemies of our democracy are at both
extremes.
The Socialists attacked Roosevelt with greater bitterness than any
president who had preceded him, because he had not been a class
president, and because he had not ignored the interests and rights of
the working people and thereby helped still further to increase the
constantly growing "class-conscious" body of dissatisfied men marching
under the Socialists' banner. That section of the press which supports
lawless property has attacked him because he has disturbed "values"
and "vested interests." There is no sure protection for property but
justice. Suppression of the labor organizations will not insure it;
they should not and cannot be suppressed. Nor is there on the other
hand any protection for the public if at the demands of a class, no
matter how large its voting strength, the peace of the whole country
is to be jeopardized by weakening the foundations of law which impose
just limitations on industrial warfare. We need for president a man who
will recognize and protect the just rights of both rich and poor and
thereby protect American democracy against its class enemies. By these
standards Mr. Taft must be judged.
Footnotes.
[1] Documents throwing light upon the action of Admiral
Alexeieff will be found at the end of General Kuropatkin's historical
narrative, although they are not a part thereof. These documents will
also explain the important part that State Councillor Bezobrazoff
played in the Far East, and indicate the source of his extraordinary
power.
[2] A town on the road from Mukden and Liao-yang to the mouth
of the Yalu River in northern Korea.
[3] Mounted Manchurian bandits.
[4] The Russian minister in China.
[5] The Russian minister in Korea.
[6] The documents at the end of General Kuropatkin's narrative
will explain why an officer as powerful even as the Minister of War
might be supposed to fear Bezobrazoff--a retired official of the civil
service who, personally, had no importance whatever.
[7] In June, 1903, there was a good deal of friction
between the employees of the Bezobrazoff company and those of a
Japanese-Chinese syndicate which had obtained from the Korean
Government, in March, a timber concession in this same region. Two
Chinese were shot by the Russians, and the rafts of the syndicate were
seized. Balasheff's dispatch probably referred to this or some similar
incident, and the Captain Bodisco to whom it was addressed was probably
an officer in the service of the Bezobrazoff company on the Yalu.--G.
K.
[8] "Osvobozhdenie," No. 75, Stuttgart, August 19, N. S.,
1905. No question has ever been raised, I think, with regard to the
authenticity of these letters and telegrams; but if there were any
doubt of it, such doubt would be removed by a comparison of them with
General Kuropatkin's history.--G. K.
[9] Asakawa, who seems to have investigated this matter
carefully, says that the original contract for this concession dated
as far back as August 26, 1896, when the Korean king was living in the
Russian legation at Seoul as a refugee.--"The Russo-Japanese Conflict,"
by K. Asakawa, London, 1905, p. 289.
[10] The italics are my own.--G. K.
[11] Since I wrote this, a friend has supplied the quotation,
but as I know no Latin, less Greek, and the least possible amount of
bad French, I cannot answer for its correctness! "Quamquam ridentem
dicere verum quid vetat?"
[12] The Ford of Weeping.
* * * * *
Transcriber's Notes.
1. Obvious punctuation errors corrected.
2. Multiple spellings of same word changed to majority spelling.
Consistent misspelling retained.