Los Angeles herald., 1906-12-05


resulted in miscarriage of Justice.
lnjunctlons
In my last message 1 suggested the
enactment of law in connection with
the issuance of injunctions, attention
having been sharply drawn to the mat
ter by the demand that the right of
applying injunctions in labor cases
should be wholly abolished. 1t is at
least doubtful whether a law abolish
ing 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. More
over. 1 believe 1t would be wrong al
together to prohibit the use of injunc-
tions. 1t is criminal to permit SYM
pathy for criminals to weaken our
hands in upholding the law; and IL
men 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 sum-
mary and effective way possible. But
so far as possible the abuse of the
power should be provided against by
some such law as 1 advocated last year
In this matter of injunctions there
is lodged in the hands of the judiciary
a necessary power which is neverthe-.
less subject to the possibility of grave
abuse. 1t Is power that should be
exercised with extreme care and should
be subject to the jealous scrutiny of
all men, and condemnation should be
meted out as much to the judge who
fails to use it boldly when necessary
as to the judge who uses it wantonly
or oppressively. OF course a judge
strong enough to be fit for his office
will enjoin any resort to violence or
intimidation, especially by conspiracy,
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 like
wise be no such abuse of the injunc-
tive power as is implied in forbidding
laboring men to strive for their own
betterment in peaceful and lawful
ways; nor must the injunction be used
merely to aid some big corporation in
carrying out schemes for it's own ag-
grandizement 1t must be remembered
that a preliminary injunction in labor
case, if granted without adequate proof
(even when authority can be found
to support the conclusions of law on
which it is founded), may often settle
the dispute between the parties; and
therefore If improperly granted may
do irreparable wrong. Yet there are
many judges who assume a matter-of-
course granting of a preliminary in
| junction to be the ordinary and proper
judicial disposition of such cases; and
there have undoubtedly been fragrant
wrongs committed by judges in con-
nection with labor disputes even with
in the last few years, although I think
much less often than in former years.
Such judges by their unwise action
immensely strengthen the hands of
those who are striving entirely to do
away with the power of injunction;
and therefore such careless use of the
injunctive process tends to threaten
it's very existence, for if the American
people ever become convinced that this
process is habitually abused, whether
in matters affecting labor or in matters
affecting corporations, it will be we'll
nigh impossible to prevent it's abolition.
The Ideal Judge
1t may be the highest duty of judge
at any given moment to disregard, not
merely the wishes of individuals of
great political or financial power, but
the overwhelming tide of public senti-
ment; and the judge who does thus
disregard public sentiment when it is
wrong, who brushes aside the plea of
any special interest when the pleading
is not founded on righteousness, per-
forms the highest service to the coun-
try. Such judge is deserving of all
honor; and all honor cannot be paid
to this wise and fearless judge if we
permit the growth of an absurd con-
vention which would forbid any criti-
cism of the Judge of another type, who
shows himself timid in the presence
of arrogant disorder, or who on in
sufficient grounds grants an injunction
that does grave injustice, or who in
his capacity as a construer, and there
fore 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 govern
ment; save in the most extraordinary
cases he is amenable only at the bar
of public opinion; and it is unwise to
maintain that public opinion in refer
ence to a man with such power shall
neither be expressed nor led.
The best judges have ever been fore
most to disclaim any immunity from
criticism. This has been true since the
days of the great English Lord Chan
cellor Parker, who said: Let all peo-
pie 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 were set forth
with singular clearness and good tenn
per by Judge w. Fl. Taft. when United
States circuit judge, eleven years ago,
in 1896:
Invites Candid Criticism
1.-THE opportunity freely and publicly
to criticise judicial action is of vastly
more Importance to the body polite
than the immunity of courts and judges
from unjust aspersions and attack
Nothing tends more TO render judges
careful in their decisions and anxious
ly solicitous to do exact justice than
the consciousness that every act OF
theirs is to be subjected to the intelli-
gent scrutiny and candid criticism OF
their fellow men. Such criticism is
beneficial In proportion as 1t is fair
dispassionate, discriminating and based
/ on a knowledge of sound legal prin-
ciples. The comments made by learned
text writer's and by the acute editors
of the various law reviews upon ju-
dicial decisions are therefore highly
useful Such critics constitute more
or less Impartial tribunals OF profes-
sional opinion before which each judg-
nent Is made to stand or fall on its
merits, and thus exert strong infiu-
ence to secure uniformity OF decision.
But non-prOfessional criticism also is
by no means without It's uses, even II
accompanied as II often Is, by a direct
attack upon the judicial fairness and