But it is said that the writ of injunction has been abused in

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.

McClure's Magazine, Vol. XXXI, September 1908, No. 5 · 第 18 / 18 段