The attacks upon our courts which are constantly being published in the
press throughout the country disclose a feeling of hostility towards
the present system of administering justice that is probably the most
portentous sign of our times. That the lawlessly inclined, who are
fortunately still in the minority, should be hostile to those who are
charged with the duty of enforcing and compelling obedience to the laws
of the state or nation is not at all surprising and is perhaps almost
inevitable in populous communities. But it is indeed surprising, and
a legitimate cause for profound anxiety and misgiving, that thousands
of honest, industrious, moral and law-abiding citizens should believe
that the laws are not being impartially or justly administered, and
that this erroneous belief should be inculcated, not only by the press
and unprincipled demagogues and politicians but by reputable leaders
of American labor and American public opinion, and even by educators.
This belief has become so widespread and so fixed in the minds of vast
numbers of our people of all classes, educated and uneducated, that
only the most exhaustive consideration and discussion of the subject
would be now adequate. Numerous letters received by the sub-committee
of the New York State Bar Association, some of which are submitted with
its report, show the intensity of the hostility towards the courts and
the extent to which it is based upon ignorance, prejudice and malice.
The fact that the writers of most of these letters are sincere need not
be challenged, but, this being conceded, many of the statements show an
utter failure to investigate the facts and an entire indifference to
the truth, and some are obviously puerile, or inexcusably inaccurate
and reckless. On the other hand, the spirit shown in letters from some
of the labor leaders must inspire the hope of their loyal assistance in
an impartial and thorough investigation. A great amount of good might
be accomplished by cooperation with them. Such a letter, for example,
as that recently received from Mr. Hugh Frayne, the general organizer
of the American Federation of Labor, indicates that exchange of views
might lead to desirable results. However irksome and laborious the
task may be, it would be a great service to the country at large if
some joint committee appointed by the New York State Bar Association
and the other bar associations of the state would undertake to
investigate all cases affecting labor or social legislation and publish
a report showing the true facts and the principles of law involved in
each case. The pity is that many of the critics of our courts are
lamentably ignorant of the subjects about which they write or declaim,
and--unconsciously and unintentionally in some instances--misrepresent
and distort the facts.
It will be practicable at the present time to review only a few of the
points suggested by the investigations of your sub-committee.
The subject of just compensation to employees for injuries received
in the course of their work is one of the most important and
far-reaching of those discussed by our correspondents, and its
increasing difficulties and complexities call for much more study than
we have been able to give it. The revolution wrought by machinery,
the inevitable dangers attending its use, the crowding of men, women
and children into factories and workshops require modifications
in the rules of law governing the duties and responsibilities of
employers. The rules of the common law, which are now condemned by
so many and sought to be cast aside, were originally dictated by the
soundest considerations of public policy, of practical affairs and
government, and of justice as between man and man. The duties of the
master toward the servant, as regulated by these rules, were humane
and commensurate with the needs of the times that evolved them, and
the rules themselves are still proper and just in the great majority
of cases. Under them, the master is required to exercise the same
degree of care for his servant that he should for his own safety, and
he is bound to furnish a reasonably safe place in which his servant
is to work, supply reasonably safe implements and machinery, select
fellow-servants reasonably competent and prudent, and, where the nature
of the business requires an overseer or superintendent, appoint one who
is reasonably competent and prudent. The application of these rules
regulating the conduct and duties of the master, in conjunction with
the rules regulating the conduct and duties of the servant--such as the
assumption of the ordinary risks of the employment, the fellow-servant
doctrine, and the rule as to contributory negligence--unavoidably
creates extremely difficult and complex questions. These rules are
still proper and just in their application to such cases as involve
the domestic relation between the farmer and his farm hands, the small
contractor and his workmen, the householder and his house servants,
the butcher, painter, carpenter, or blacksmith and his workmen. In all
these cases it is, it seems to us, as true on principle to-day as it
was half a century ago that the master is not bound to take more care
of his servant than he may be reasonably expected to take of himself,
and that a servant has better opportunities than his master of watching
and guarding against the conduct and preventing the negligence of
his fellow-servant. It is as true now as it ever was that, so long
as liability is based on the theory or principle of negligence, a
servant ought, generally speaking, to be held to assume the ordinary
and obvious risks of the employment upon which he enters and for which
he presumably stipulates for adequate and satisfactory compensation.
Likewise, in the majority of cases, it is as true to-day as it ever
was that the servant who has been guilty of contributory negligence
should not be allowed to charge his master with responsibility for the
injury. The reasoning of the judges establishing and maintaining these
doctrines at the common law has never been refuted. Nevertheless, they
are mere rules of law, subject to change, not by the judiciary, but
by the legislature; and, in the opinion of the writer, there is no
provision in the state or national constitution which would prevent
their abrogation if this were deemed necessary or desirable by a
legislative body.
But modern industrialism, the development of machinery, the employment
of large numbers of men and women in crowded factories, and work
in connection with dangerous instrumentalities of manufacture and
transportation, etc., have changed conditions, so that what is still
true of the farm, the household, the small artisan, the carpenter, the
painter, the butcher, the grocer, etc., is not true of the busy hives
of manufacture, of transportation by steam or electricity, or of other
hazardous industries. The increase in accidents, the apparent certainty
that many casualties are inevitable, the recklessness engendered by
the modern struggle for existence, the increasing difficulty in many
employments of measuring degrees of fault, the pressing necessities
and improvidence of the poor: these and other considerations well
warrant the interposition of the legislature as the lawmaking power
of the state, in order to make changes in the law--changes which the
courts should not attempt to make, for their duty or function is not
to legislate but to declare what the law has been or now is. Instead,
then, of abusing the courts, how much wiser and more decorous would
it be for labor organizations, labor leaders, or social reformers to
petition the legislature to amend the law, and to abandon the attempt
to intimidate and coerce the judiciary into making the desired change.
One of our correspondents speaks of "the venomous fellow-servant
doctrine." Yet the responsibility for the continuance of that doctrine,
if it has become undesirable in any employment or in all employments,
rests wholly with the legislature and not with the courts. We should
be surprised if any lawyer or student professing the slightest
knowledge of American constitutional law would seriously assert that
the legislature could not change that doctrine without amending or
tinkering our constitutions.
It is, however, fit and proper to add that many lawyers and laymen
are convinced that to abolish the existing rules indiscriminately in
every case where the relation of master and servant may exist would be
a mistake from the standpoint of public policy and practical justice,
and that such a radical measure would do more harm than good. Certainly
that is the judgment of competent observers of the operation of the
British statute. A change in the law which would be wise if confined
to large factories and hazardous employments, to labor in connection
with dangerous machinery, to service on railroads, in large electrical
works, etc., etc., might be extremely unwise, unjust and oppressive if
applied, for example, to the small farmer, the artisan, the mechanic,
or the householder. A rule concededly wise and just in the one case
might be the extreme of folly and oppression in the other. An accident
on a farm caused by the negligence or drunkenness of a farm hand
might, under some of the proposed reforms or innovations, bankrupt
the most prudent farmer for causes quite beyond his control; and a
similar disaster might easily overtake the small artisan, mechanic, or
householder, and sweep away the savings of years. It is, of course, no
answer to say that the farmer, the artisan, the householder employing
men or women can insure. Why should this form of taxation be levied
upon slender earnings, which are frequently insufficient to make
both ends meet? Why should the farmer or artisan of limited means
be compelled to pay tribute to private insurance companies so often
engaged in combinations to extort the highest possible premiums?
Let every master be responsible for his own negligence, but let
the line be drawn short of making every master--every employer of
another--the insurer of the safety of his servant to the extent of
rendering the master liable for injuries resulting from no fault of his
own but from the carelessness and negligence of the servant himself or
of a fellow-servant.
An interesting example of the operation of a statute in connection
with established rules of law will be found in the case of Knisley
_vs._ Pratt.[51] The legislature had prescribed certain devices for the
protection of women and children, including a provision that cogs on
machinery should be properly guarded. In enacting this provision, as
the courts were bound to assume by the settled rules of construction,
the legislature was fully aware of the existing law in the state of
New York in regard to the assumption of obvious and ordinary risks of
employment by men and women of full age and capacity. The plaintiff
in the Knisley case was a woman of full age and capacity, and she
was well aware of the danger she was running in approaching too near
machinery in operation. Had the statute been competently drawn, it
would have provided--_assuming, of course, the draftsman and the
legislature so intended_--that the rule of assumption of risk should
not apply to cases within its purview; in other words, it would have
provided that the master should be liable for any injury to a servant
arising from the master's neglect to furnish the protection required
by the statute whether or not the servant knew of such neglect or
contributed in any way to his own injury. No provision of state or
federal constitution prevented the legislature from enacting that the
employer should be absolutely liable for the consequence of his own
deliberate neglect to obey a statutory provision intended to protect
human life and particularly the lives of women and children. There
is not the remotest intimation by the court in the Knisley case that
the legislature could not so alter the law. After the decision in that
case had been announced, a change in the law could have been readily
made within a week, for the legislature was then in session--February,
1896. Yet seventeen years have passed without such an enactment, and in
the meantime the Court of Appeals has been assailed before the whole
country for its lack of sympathy with the poor and helpless and with
social progress as evidenced among other things by this decision!
It is true that the doctrine of the Knisley case has been recently
overruled by the Court of Appeals in the case of Fitzwater _vs._
Warren.[52] But many lawyers believe that the court might better have
left this change to the legislature, which could have made it seventeen
years ago if it had so desired, and not have furnished additional
ground for the criticism that our courts are resorting to judicial
legislation. Despite the Fitzwater case, it would still be wise for
the legislature, _if it deems that the rule of law should be as now
announced_, to enact a properly drawn statute declaring that whenever
a statutory provision requires a master to supply guards or other
protection for his servants in hazardous employments or in connection
with the use of dangerous machinery, his neglect to do so shall render
him liable irrespective of the doctrines of assumption of risk,
fellow-servant's fault, or contributory negligence.
The manner in which nominations have been made in recent years for
judicial office and particularly for the Court of Appeals has also
invited very serious criticism on the part of our correspondents.
As is well known, the bar of the state of New York, with almost entire
unanimity, has been endeavoring for many years to separate nominations
for judicial office from other nominations, and thereby to divorce
the bench from politics. It was the bar that has urged and forced the
renomination of judges for the Court of Appeals on a non-partisan
basis. It was the bar that urged and forced the renomination and
election of Judge Gray and Chief Judge Cullen and other members of
our highest court. It is simply slanderous to charge that any of the
present judges of that great court were nominated at the request or
dictation of what our correspondents call "the interests." The contrary
is the truth; and the whole history and conduct of the court refute an
accusation which is as contemptible as it is unfounded.
The bar of the state was practically unanimous in urging the passage
last year of the measure known as the Judicial Candidates Bill, which
proposed that the names of judicial candidates should no longer be
printed in the party column on the general and official ballot, but
on a separate ballot, or in a separate column of the voting machines,
without party designation in either case, to the end that candidates
for judicial office might be voted for as individuals and not as
members or candidates of any political party. There was then an
excellent opportunity for the professed social reformers and labor
leaders who are so vehemently assailing our judicial system to aid in
a movement to eliminate from politics the election of judges. But it
was not availed of. The bill was defeated. It had little support from
the press and very little, if any, support from social reformers or the
representatives of labor. It will undoubtedly be introduced again this
year; it has been once more approved by the Association of the Bar of
the City of New York, and it will probably be again approved by the
state association and by the bar of the state at large. Let the labor
organizations now assist and cooperate in procuring the enactment of
this law, and help to secure the election of judges on their own merits
and personal character apart from considerations of political service
or the favor or support of political leaders or bosses, or of any
particular class.
A few years ago in the city of New York an earnest attempt was made
by the bar to secure the election of justices of the Supreme Court on
a non-partisan and non-political basis. A committee of members of the
bar nominated lawyers of the highest standing in their profession, of
recognized ability and learning and of unimpeachable character. These
nominees were defeated, and to that defeat the labor organizations
greatly contributed. These organizations then gave no support whatever
to the movement to secure a separation of the courts from politics, and
they were quite indifferent to the nomination of men of the highest
character and of the highest qualifications for judicial office.
The plain truth on this point may serve and be useful as an object
lesson. The least competent and the least experienced of the justices
of the Supreme Court in the county of New York and elsewhere throughout
the state are generally those who have been nominated because they were
endorsed by labor organizations or were supposed to be acceptable to
them. Everywhere throughout the country it is said that whenever labor
organizations dictate or control the nomination of judges, they select
lawyers of inferior education and talents and not of superior character
and independence. It is high time that this truth was well pondered by
labor.
One of the real causes for the discontent with the administration of
justice in our state courts, and particularly in the larger cities,
is that judges are nominated and elected not because of their legal
ability and personal character, but because of their party affiliations
or their supposed friendship or sympathy for or inclination to favor
one class as against another. If the personnel of our Court of Appeals
and Appellate Divisions has thus far been kept uniformly high and
pure, it is because of the constant efforts of the bar. If labor
organizations and the people at large will now cooperate with the
bar, who in this matter are the proper leaders of public opinion,
there will be infinitely less occasion for complaints of delay or
incompetency or partiality in the administration of justice. The
multiplication of incompetent judges means the multiplication of the
causes of delay, new trials, denial or miscarriage of justice, expense,
discontent and suspicion. The cure for these evils is with the people
themselves, and it will be brought about only when they shall insist
upon the nomination and election of lawyers of learning, character and
independence.
It must be plain to all who have studied the facts and reflected upon
existing tendencies that during the past twenty years the amendments
to the laws regulating nomination and election to public office have
served to strengthen and perpetuate the control of political leaders
and political machines. Many bills introduced and loudly acclaimed as
reforms have in truth proved to be not reforms at all, but steps in the
dark and backward.
Some of our correspondents blame the courts for the "law's delay,"
yet there is no defect in our system for which competent judges
are less responsible. In most instances of delay in civil cases,
the blame belongs to the lawyers. Nothing has done more to bring
the administration of justice into disrepute than the practice of
adjourning cases term after term and year after year on excuses which
sometimes are not well founded. There need be no unreasonable delay
even in the city of New York, and would not be, if lawyers were ready
to try their cases when they are first reached on the calendars. The
judges are constantly complaining of the dilatoriness of the bar.
Another cause of delay is the practice of bringing suits and taking
appeals for the purpose of coercing settlements. A higher sense of
professional responsibility ought to be cultivated, and there should
be some severe penalty or professional ostracism for lawyers who abuse
the process of the courts of justice and disregard the ethics of their
profession.
In like manner, in criminal cases the real cause of delay in nearly
every case is the failure or inability of prosecuting officers to press
their cases diligently; and the frequent change in the personnel of our
officeholders is likewise a cause of much delay. Whenever one official
succeeds another, the period during which the new incumbent is learning
what occurred before he came into office and familiarizing himself
with the pending cases is so much time lost. Greater permanency in the
tenure of office of prosecuting officers would probably conduce to
greater speed and greater efficiency in the enforcement of the law. Nor
can it be doubted that many public officials and their assistants do
not feel the same degree of responsibility for the prompt dispatch of
public business that they would feel if representing private clients.
The remarks of Mr. Justice Scott in the recent case of People _vs._
Turley are indeed timely, and should be commended to the attention of
all prosecuting officers throughout the state. He used the following
language: "There is much well-justified complaint at the present
time of the slowness with which the criminal law is enforced, and
especially of the great length of time which is frequently permitted
to elapse between a conviction and the review of the conviction by
the appellate courts. Among persons not conversant with the rules of
criminal procedure, the courts are not unnaturally, but most unjustly,
charged with a large share of responsibility for this condition. The
blame rests elsewhere. The appellate courts are powerless to act until
the appeal is brought before them by those charged with that duty. When
the matter is brought up for a hearing, the delay is ended, and the
appeal is invariably promptly decided. The present is a particularly
flagrant case. The defendant was convicted in March, 1909, and was
almost immediately released on bail pending an appeal, under a
certificate of reasonable doubt. The record is not voluminous, and the
questions of law involved are neither difficult nor intricate, and yet
the defendant has been at large for three years and a half before the
appeal is brought on for argument. Of course under such circumstances
the defendant was quite satisfied and was in no haste to have his
appeal argued. The duty to bring it on promptly rested, as it rests in
every case, upon the district attorney, who had it in his power at any
time to force a hearing of the appeal by moving to dismiss it. This
court has never shown itself to be unwilling to support and cooperate
with the district attorney in compelling appeals in criminal cases to
be argued with all reasonable promptness. The remedy for unreasonable
delays in the final disposition of criminal appeals lies in his
hands."[53]
A number of important murder cases will be readily recalled where years
have elapsed between the conviction of the accused and the argument
in the Court of Appeals. Not only does this unnecessary delay deprive
the judgment of conviction of much of its effect as an example and
deterrent precedent, but in cases of reversal and new trials evidence
is sometimes lost, and the guilty thus escape. In the latest reported
murder case from New York county, People _vs._ Lustig,[54] the
defendant was convicted of murder in the first degree in June, 1910,
but the appeal was not brought on for hearing in the Court of Appeals
until June 14, 1912, when it was decided and reversed within two weeks
after the argument, viz., on June 29, 1912. In the meantime, as we are
informed, material witnesses had disappeared, and the defendant is now
at large on his own recognizance, and probably will not be tried again!
Another case of apparently inexcusable delay is People _vs._
Koerner.[55] The crime of murder was committed in September, 1896. The
defendant was indicted within a month thereafter, and was convicted of
murder in the first degree on March 1, 1897. The appeal was argued in
the Court of Appeals within four court months, on October 22, 1897,
and the judgment was reversed on November 23, 1897. The case was
then re-tried, and resulted in a judgment of guilty of murder in the
second degree on March 15, 1898. The records of the courts show that
the appeal from this judgment was not brought on for argument in the
Appellate Division until December 12, 1906, and then resulted in an
affirmance by that court on January 11, 1907, and that the appeal was
not argued in the Court of Appeals until February 19, 1908, when the
judgment was affirmed without opinion in less than three weeks!
Yet for the delays in these and similar cases the courts are criticized
and their administration of criminal justice intemperately assailed
by the press and other critics, notwithstanding the diligence of
the judges in disposing of appeals when duly presented for their
consideration.
It may be true that the pressure of innumerable cases compels the
district attorney in New York county to delay the argument of appeals;
but the remedy is to provide him with additional competent assistants
and certainly not to indulge in indiscriminate criticism or unfounded
abuse of the courts, or to resort to panaceas of reform in criminal
procedure, which too often only multiply technicalities, deprive the
individual of necessary protection, and create more or less confusion.
I shall now ask attention to the subject of injunctions in connection
with strikes. I shall not argue the proposition that strikers in
industrial controversies, or labor and labor organizations should not
be above the law, or a law unto themselves. I assume that this is
still a self-evident proposition in this state and may still be taken
for granted. History certainly teaches us that in a free country no
class can safely be released from the duty of obeying the laws, and
that if disobedience be permitted in favor of the laboring classes, the
industrious, honest and law-abiding laborer will be the worst sufferer
in the long run. Nor will time be taken to point out that no civilized
community can long permit any class to maim, or murder, or destroy
property, or violently prevent others from earning their living, in
order to coerce compliance with the demands of that class.
There would, of course, never be occasion for the use of injunctions
in labor disputes if there were no threats of violence and no danger
of injury to persons or property. If the labor organizations of this
country will now earnestly, effectively and sincerely cooperate with
the bar in the endeavor to put an end to violence and riots, which
are the unfortunate but apparently inevitable attendants of every
protracted modern strike, there will no longer be any occasion for
condemning the courts on account of the issuance of injunctions, for
there will then be no necessity for injunctions.
One aspect of the injunction problem is emphasized in the
correspondence now submitted, and should be dealt with here. It is the
matter of giving notice to the defendants before an injunction order
is granted. Recently, when the United States Supreme Court adopted its
new rules, including one as to injunctions, Mr. Gompers and other labor
leaders loudly proclaimed that they had secured a great victory. Thus,
Mr. Gompers is reported in the "Literary Digest" of November 16, 1912,
as calling the new rule a reform and "a step in the right direction,
and one of the things labor has long been fighting for." But, as
every one familiar with the subject well knows, there is nothing in
the new rules that materially changes the pre-existing practice in
regard to injunctions. The authoritative treatises on federal equity
procedure by Mr. Foster and Mr. Street conclusively show this. No
case has been cited to us and we have found none where the defendants
enjoined were not granted by the courts as much facility in moving to
dissolve or modify injunction orders as is provided for in the new
rule. The learned and impartial editor of the "New York Law Journal"
well said in the issue of December 11, 1912: "The only portion of the
new procedure which has attracted the attention of the daily press is
the rule regarding preliminary injunctions. This, however, is no more
than an adoption of good New York practice, and, indeed, of good equity
practice everywhere, viz.: that no _ex parte_ injunction shall go out
except as a stay-order to show cause why a preliminary injunction
should not issue."
The case most often cited by labor leaders is known as the Debs
case growing out of the Pullman strike at Chicago in 1894. If any
fair-minded critic of the courts will take the trouble to read the
unanimous, patriotic and inspiring opinion of the Supreme Court of the
United States in the Debs case,[56] or what ex-President Cleveland
wrote on the subject in his book on "Presidential Problems," published
in 1904, he will at once realize that the issuance of the injunction
order and the subsequent punishment of Debs and his associates for
deliberately and defiantly disobeying it were both proper and necessary.
For nearly twenty years and since the Debs case in 1894-1895, the labor
leaders, agitators and demagogues of the country have been assailing
the courts and denouncing "government by injunction" on the pretense,
among others, that the judges denied the defendants in that case
any opportunity to be heard, when as a matter of fact, they had the
fullest notice and opportunity to be heard, but deliberately elected
to disobey and defy the court. Indeed, in no jurisdiction is it true
that a defendant is denied the right to a hearing upon the matter of an
injunction against him, and the sub-committee has been unable to learn
of a single case in which a judge has refused to give the defendant a
hearing either upon an application to grant or continue an injunction,
or to set one aside. A permanent injunction order is never granted
without notice to those affected and an opportunity to be heard; nor
is even a temporary restraining order issued without notice of hearing
unless the danger of irreparable injury from delay be very grave, and
then the order is made returnable at the earliest practicable date,
so as to afford the defendants an opportunity to be promptly heard.
If a temporary restraining order should be granted improvidently on
insufficient papers and upon an _ex parte_ application, it is well
known that the order may be and frequently is vacated immediately on
the _ex parte_ application of the defendants. Most lawyers are familiar
with such cases. The fact is that laboring men have always been
afforded a hearing and a day in court in connection with injunction
orders, and that no man has ever been punished for contempt by an
American court without due notice to him and full opportunity to
present his excuse or defense. Indeed, were any man punished without
notice and opportunity to be heard, the order for his punishment would
be without jurisdiction and utterly void.
I may add that the lawless and violent among the members of labor
organizations will not in the end gain any real liberty or advantage
for the laboring classes, even if they succeed in abolishing the writ
of injunction in labor disputes and with it the power of the courts to
punish disobedience as a contempt of court. Destruction of property
and assaults upon peaceful workingmen cannot permanently be tolerated
in any civilized community. Sooner or later, the government must
afford protection in one form or another; otherwise chaos, anarchy and
barbarism are inevitable. If injunctions cannot be issued to restrain
the violent and protect the property of the innocent and law-abiding
citizen, simply because he is an employer or property owner, then
resort will finally have to be had to the club of the policeman or
the bayonet of the militiaman or regular. It is no use blinking this
certainty. That was plainly the alternative presented by the Pullman
strike; and President Cleveland then wisely preferred the orderly and
peaceful procedure of a court of justice to the police power of the
army. Under military rule, the laboring man may receive no hearing at
all, and martial law with its arbitrary practices and despotic power
will have to be substituted for the regular procedure of impartial
courts of justice acting upon full notice to all affected and affording
full opportunity to be heard.
The New York Code of Civil Procedure in sections 602-630 has long
protected the rights of a striker as adequately as any other system
of procedure, state or federal, domestic or foreign, and even better
than the recent rule of the United States Supreme Court, which some
labor leaders are acclaiming as a boon. Lest we forget, it may be
useful to recall the exact language of section 626, which has been the
statutory law since 1895. It is as follows: "Where the injunction order
was granted without notice, the party enjoined may apply, upon the
papers upon which it was granted, for an order vacating or modifying
the injunction order. Such an application may be made, without notice,
to the judge or justice who granted the order, or who held the term
of the court where it was granted; or to a term of the appellate
division of the supreme court. It cannot be made without notice, to any
other judge, justice or term, unless the applicant produces proof, by
affidavit, that, by reason of the absence or other disability of the
judge or justice who granted the order, the application cannot be made
to him; and that the applicant will be exposed to great injury, by the
delay required for an application upon notice. The affidavit must be
filed with the clerk; and a copy thereof, and of the order vacating or
modifying the injunction order, must be served upon the plaintiff's
attorney, before that order takes effect."
As is well known to all lawyers, a restraining or injunction order is
never granted by a state or federal court in New York without notice
to the defendants except when proof is submitted to the judge by
affidavit or verified complaint which shows that, unless the defendant
be immediately enjoined, irreparable loss or damage will result to the
applicant before the matter can be heard on notice. If the court has
sworn proof thus submitted to it that the defendants are threatening
immediate injury to person or destruction of property, it is the duty
of the judge--and may it ever be the duty of every American judge--to
issue an injunction without delay, for delay in such a case would in
most instances work a complete denial of justice.
If our system of equal laws impartially administered is to endure,
the courts must continue to shield and protect the individual by
means of injunction orders, and they should not be deprived of the
power of exercising one of the most beneficent remedies afforded by
any system of laws and one indispensable to the due and satisfactory
administration of distributive and equal justice.
Some typical examples of misrepresentation of our courts by leaders of
public opinion will be recalled in connection with the Tenement House
Tobacco case, the Bakers case, the Ives case, and other cases involving
so-called social legislation.[57]
When Mr. Roosevelt's statements in regard to the Tenement House case
were recently challenged by four lawyers, including Senator Root, Mr.
Milburn and Mr. Marshall, as being inaccurate and likely to mislead
the voters of the state, he made no correction whatever, but urged
the people to accept his statements and those of a settlement worker
instead of the record of the case before the Court of Appeals. This
incident will serve to show the difficulty of combating such inaccurate
statements, which are given the utmost publicity by the press
throughout the country, whereas the refutation is generally ignored.
A report of Mr. Roosevelt's public comments, when his attention was
called to his manifestly incorrect statement of the decision in the
Tenement House case, quotes him as saying:
"I am informed that these four gentlemen attacked the statements as
being contrary to both the facts and the law. The first was the case
of the tenement-house cigar manufacturers. Now I will read to you what
is said by one of the women who knows the conditions of tenement-house
life as few other women, and as hardly any man, knows them, by Florence
Kelly in a book called 'Some Ethical Gains through Legislation,' and
I cordially commend to Mr. Root and his associates who signed his
protest to study that book and to ponder what is meant by the word
'ethical' in connection with legislation. Of the Jacobs case, to
which I referred, Mrs. Kelly says: 'To the decision of the Court of
Appeals in the case In re Jacobs is directly due the continuance of the
tenement manufacture and of the sweating system in the United States
and its present prevalence in New York.' That is the statement of a
woman who, as regards knowledge of tenement-house conditions, knows so
much more than those four great corporation lawyers that her little
finger is thicker than their loins when you come to study what they
know and what she knows of the subject of which they have ignorantly
presumed to speak."
And yet all that these lawyers did was to point out the inaccuracy
of Mr. Roosevelt's statements as to what the courts had held, and to
suggest that this inaccuracy would be demonstrated by reference to
the records of the courts, which are open to all who care to take the
trouble to ascertain the truth.
It should be recalled in connection with any fair and candid
consideration of the Tenement House case that the constitutional
convention of 1894 had ample opportunity to change the rule in that
case if it had then been thought to interfere with the attainment of
"social justice." Although the subject was called to the attention of
the convention, it was deemed advisable to make no change. The rule
is reasonable and well-settled in the interpretation of constitutions
and it was well known to the distinguished members of that convention
that "where a clause or provision in a constitution, which has
received a settled judicial construction, is adopted in the same words
by the framers of another constitution, it will be presumed that the
construction thereof was likewise adopted."
Another judicial decision denounced by Mr. Roosevelt a few days before
the last election is the Knisley case discussed above. Speaking of
this case, he told his audience, and through the press told the whole
country, that "the Court of Appeals threw out the case and declared
the law unconstitutional on this ground: that the legislature could
not interfere with the liberty of that girl in losing her arm.... The
trouble was that they knew law but didn't know right, and still more,
as I have stated, that they had arrogated to themselves the right that
the people should have--the right to decide what the common sense and
justice of the people demand." Yet there was not one word anywhere in
the record or in the opinion of the Court of Appeals which suggested
that the act was unconstitutional or that the legislature did not
have full power to change the common law rule in such cases and make
the employer liable to his injured workmen or workwomen if he failed
to comply with a statute prescribing guards or other protection for
employees. The most superficial investigation would have disclosed
the fact that the Court of Appeals has never intimated in any case
that such a statute would be unconstitutional, and that in the Knisley
case it neither had before it nor decided any question concerning the
constitutionality of an act of the legislature.
Shortly before the election, Mr. Roosevelt caused to be published in
the "Saturday Evening Post" of Philadelphia, under the title of "The
Deceitful Red Herring," the following statement: "Our platform demands
an eight-hour law for women in industries.... But the Court of Appeals
of New York has said that the ten millions of people of my state have
not got that right if they wish to exercise it. In New York the people
did not ask for an eight-hour day--asked for only a ten-hour day for
women. Then the Court of Appeals said that under their interpretation
of the Constitution the small sweat-shop keeper or the big factory
owner may work haggard women twelve, fourteen or sixteen hours a day,
if he chooses, and we cannot stop it."
As a matter of fact, however, as the slightest investigation would have
disclosed, the New York Court of Appeals had never decided anything of
the kind. Moreover, there was in our state when Mr. Roosevelt published
this statement a statute limiting the hours of labor for women to nine
hours per day and fifty-four hours per week,[58] and for thirteen
years prior to the recent amendment there had been a statute limiting
the hours of labor of women to ten hours per day and sixty hours per
week. These statutes had been regularly enforced for years, and their
constitutionality had never been even questioned, so far as I have been
able to ascertain.
Immediately after the publication of this article in the "Saturday
Evening Post," a communication was addressed to the publisher by a
well-known and reputable member of the New York bar, Mr. Alfred E.
Ommen, pointing out the misstatement in regard to the Court of Appeals
and conclusively showing its error; but this important periodical, with
perhaps the largest circulation of any American weekly, saw fit to
leave uncorrected this untrue and grossly misleading statement, and it
has not yet withdrawn it, and probably never will do so.
Such is the tenor of the criticisms of the courts to be found in public
speeches and in all forms of publication. They find constant repetition
in the press, and carry the authority of distinguished leaders of
public opinion and of men who at the present time have the ear and the
confidence of the people. The statements of such men are naturally
accepted as accurate and true. Who would believe it possible that any
such statements as the above could be made by an ex-President of the
United States unless they were true? As the draft of this report is
being revised, an advertisement proclaims a renewal by Mr. Roosevelt
of his attack on the courts, and a new assailant and critic appears
in the person of Mr. William Randolph Hearst, who seems desirous to
emulate Mr. Roosevelt in his abuse of the courts. The press at large
continues to give the fullest publicity to all attacks on the courts
and little or no space to any refutation of them. The judges are
being misrepresented and assailed on all sides. They cannot defend
themselves. The bar at large so far has seemed indifferent; and in the
great forum of public opinion judgment is going by default.
If these misleading criticisms are not refuted, and the courts are not
defended, they may bend before the storm of undeserved censure and
the clamor of the crowd. There is grave danger that the judges will
be unconsciously intimidated and coerced by this abuse. Indeed, some
recent decisions are ominous. Is it not then fit and proper that the
members of our profession should charge themselves specially with the
task of defending the courts and placing the facts before the people?
The bar associations of the country will never be called upon to render
a greater service to the profession and to the community at large
than that of stemming this tide of misrepresentation and intemperate
abuse, and of restoring confidence in the learning, impartiality and
independence of our judges, in the justice of their decisions, and in
the necessity of their enforcing constitutional restraints.