New-York tribune., 1906-12-05

in the transaction its business to treat the citi
business with unjust ard nGt ON
different citizens different classes of Citizens
proof Of which 0e it is svsy VeTy deu GqRe M6 ta
in 1851 nearly twentW vears @ & act was passed
time COMPLAINTS of the granting of rebates by rail
although the Congress has repeatedly passed egis-
difficulty Of obng @ put proo s10P n69n TO %bc this sy % the
prosecution In these cases is so that this is
court: and as | am informed this case and one
tSSehy Se orought in Philaielphia are the only
6l riiis counry In fact, but few this kind
or West Now, under these circumstances I am
proof is SO , Clear end On n case in which the
sba IS fne in duty H5n of the court 70 fix penalty which
grayty the offence As between the wn wo te ae
shoad Be- possa in ms SPniOn opt the principal penalty
anaser anv IN this Is case presumably acted without
or or IN aaccordan%e with what he understood to be
~, The sentence Of this court in this case is that
FENCES ee nno wb bP9mSroy G for each Of the
ali 10 % the OF sum Y Of ss s six six fines , amogntng in
New York Central Hudson River S ai' Raroad come ane
Pany' Tor each of the six crimes of which it has
six fines amounting in the aggregate to the sum
tered In this case ~ e'eN' win 'e Gil
In connection with this matter. would like to
call attention TO the unsatisfactory state of
our criminal law, resulting in large part from
the habit of setting aside
Settin9 ASIDE the Judgments of inferior
OF Judgments and courts on technicalities alb
SrahIhg OF solutely unconnected with
new Trials. the merits of the case. and
where there is attempt
TO show that there has been any failure of sub
stantial Justice. 1t would be well to enact a law
providing something to the effect that
NO Judgment shall be set aside new trial
granted in any cause, civil or criminal, on the
ground of misdirection of the jury or the i'm
proper admission rejection of evidence or
for error to any matter of pleading or pro-
unless. nniDiOp nf rha
which the application is made after an exam
lnatlon OF the entire cause. it shall affirmativey
appear that the error complained of has resulted
in a miscarriage of justice.
In my last message l suggested the enactment
OF law in connection with the issuance of in
functions, attention having been sharply drawn
TO the matter by the demand
inJunctions that the right of applying
injunctions in labor cases
should be wholly abolished. 1t is at least doubt
full whether law abolishing altogether the use
OF injunctions in such cases would stand the
test OF the courts; in which case, OF course, the
legislation would be ineffective. Moreover, l
believe 1t would be wrong altogether to prohibit
the use of injunctions; 1t is criminal to permit
sympathy for criminals to weaken our hands in
upholding the law; and If seek to destroy
life or property by mob violence there should be
no impairment OF the power of the courts to deal
with them in the most summary and effective
way possible. But far possible the abuse
of the power should be provided against by some
such law as advocated last year
In this matter of injunctions there is lodged
in the hands OF the Judiciary a necessary power
OF grave abuse 1t is a power that should be
exercised with extreme care and should be sub
ject to the jealous scrutiny of all men, and
concentration should be meted out as much to
the judge who fails to use it boldly when neCes-
sary to the judge who uses it wantonly or op-
pressively. OF course Judge strong enough
to be fit for his office will enjon any resort TO
violence or intimidation. especially by con-
spiracy, no matter what his opinion may be Of
the rights of the original quarrel There must
be no hesitation in dealing with disorder. But
there must likewise be such abuse of the in
junctive power as is implied in fOrbidding labor
ing men TO strive Tor their own betterment in
peaceful and lawful ways; nor must the injunc-
tion be used merely TO aid some big corpora
ti0n i'm carrying out schemes for its own aggran-
diZement. 1t must be remembered that a pre-
liminary injunction in a labor case, If granted
without adequate proof teven when authority
can be found to support the conclusions of law
on which II is founded), may often settle the
dispute between the parties; and therefore II
improperly granted may do irreparabe wrong.
Yet there are many judges who assume a
matterof-course granting of preliminary in
junction TO be the ordinary and proper judicial
disposition of such cases; and there have un-
dOubtedly been fragrant wrongs committed by
Judges in connection with labor disputes even
within the last few years. although 1 think
much less often than IN former years Such
Judges by their unwfse action Immensely
strengthen the hands of those who are striving
entirely 10 do away with the power OF injunc-
ton: and therefore such careless use OF the IN
tunctive process tends to threaten its very eX-
istence for if the American people ever become
convinced that this process is habtually abused.
affecting corporations. It will be well-ngh i'm
possible TO prevent its abolition.
1t may be the highest duty Of a Judge at any
given moment to disregard not merely the
wishes Of individuals of great political or hnan-
cal power but the overwhelming tide or pubic
sentiment: and the judge who does tnuS dlS-
regard public sentiment when ii is wrong, who
brushes aside the plea of any special interest
when the pleading is not founded on righteous
ness, performs the highest service to the coun-
try. Such Judge is deserving or all honor;
and all honor cannot be paid to this wise and
fearless judge If We permit the CROWN OF an
absurd convention which would forbid any crit
icism of the judge of another type, who shows
himself timid in the presence OF arrogant as
order, or who on insufficient grounds grants an
Injunction that does grave injustice. or who In
his capacity as a construer. and therefore in
part a maker of the law. in fragrant fashion
thwarts the cause of decent government. The
judge has a power over which no review can
be exercised: he himself sits in review upon the
acts OF both the executive and legislative
branches of the Government; save in the most
extraordinary cases he is amenable only at the
bar Of public opinion: and il is unwse TO main
tain that public opinion in reference to a man
with such power shall neither be expressed
nor led.
The best judges have ever been foremost 10
di.caim any immunity from criticism This has
been true since the days of the great English
Lord Chancellor Parker. who said: Let all
people be at liberty to know what found my
Judgment upon; that. so when have given 1t
in any cause, others may be at liberty TO Judge
Of me-" The proprieties OF the case We're set
forth with singular clearness and good temper
by Judge w. II. Taft, when a United States
circuit Judge. eleven years ago. I'm 1895:
The opportunity freely and publicly TO critcise
judicial action liz OF vastly Importance to the
body polite than the immunity of courts and
judges from unjust aspersions aud attack. Moth
i,,g tends more render Judges careful I'm their
decisions and anXiousy soiicious do exact JUS
tce than the consciousness that every theirs
is 10 be subjected to the intelligent scrutiny and
candid criticism OF their fellow men Such criti-
cism Is beneficial IN proportion as II IS fair dis
nsssionate discriminating and hs ssed on n knowl-
edge of sound legal principles. Tha comments made
nv learned text writers and by IAe acute editors
OF the various law reviews upon judicial decisions