The Birmingham age-herald., 1908-12-09

civilization which has grown up in the
 last half century.
 The rapid changes in our social and in-
 dustrial life which have attended this
 rapid growth have made it necessary that,
 in applying to concrete cases the great
 rule of right laid down in our constitu-
 ton, there should be a full understand
 ing and appreciation of the new condi-
 tons to which the rules are to be applied
 What would have been an infringement
 upon liberty half a century ago may be
 the necessary safeguard of liberty today
 What would have been an injury to prop
 erty then may be necessary to the enjoy
 ment Uf property now. Every judicial de-
 e.sion involves two terms-one, an inter
 pretation of the law; the other the un-
 derstanding of the fact to which 1t is to
 be applied The great mass of our ju-
 dieial officers are, I believe, alive to these l changes of conditions which so materially
 affect tke performance of their judicial
 duties. Our judicial system is sound and
 effective at core, and it remains, and must ! ever be maintained, as the safeguard of ! those principles of liberty and justice
 which stand at the foundation of Americ-
 an institutions; for, as Burke finely said, i when liberty and justice are separated, i neither is safe. There are, however, some
 members Of the judicial body who have l Jagged behind in their understanding of
 
 1 polite. whose minds have never been l opened to the new applications of the old
 principles made necessary by the new i conditions. Judges of this stamp do last i ing harm by their decisions, because they 1 convince poo1 men in need of protection l that the courts of the land are profound l ly indifferent or hostile to any proposed 1 remedy. To such men it seems a cruel 1 moekery to have any court decide against fi9rp m n serye liberty in purely technical form, l by withholding liberty in any real and constructive sense. It is desirable that the legislative body should possess, and i wherever necessary exercise, the power to determine whether in a given case em- ployers and employees are not on an equal footing, so that the necessities of the lat ter compel them to submit to such exac- tions as tt hours and conditions of labor as unduly to tax their strength; and only mischief can result when such determin- ation is upset on the ground that there must be no interference with the liberty to contraet,'-often a merely academic liberty" the exercise of which is the negation of real liberty.
 There are certain decisions by various courts which have been exceedingly detri- mental to the rights of wageworkers. -.s is true of all decisions that decide that men and women are, by the constitution, guaranteed their liberty" to contract to enter a dangerous occupation, or to work an undesirable or improper number Of hours or to work in unhealthy surround ings; and therefore cannot recover dam ages when maimed in that occupation, and cannot be forbidden to work what the legislature decides is an excessive number of hours, or to carry on the work under conditions which the legislature de- cides to be unhealthy The most danger , ous occupations are often the poorest paid and those where the hours of work are longest; an1 in many cases those who go into them are driven by necessity so great ] that they have practically no alternative. l Decisions such as those alluded to above l nullify the legislative effort to protect the l wageworkers who most need protection i from those employers who take advantage 1 of their grinding need. They halt or hamper the movement for securing better
 and more equitable conditions of labor. 1 The talk about preserving to the misery 1 hunted beings who make contracts for
 such service their liberty to make them, ] is either to speak in spirit of heartless i irony or else to show an utter lack of
 knowledge of the conditions of life among 1 the great masses of our fellow country men. lacL which units judge to do good service just as il would unfit any executive or legislative officer.
 There is also, I think, ground for the belief that substantial injustice is often suffered by employees in consequence of the custom of courts issuing temporary 'njunetions without notice to them, and punishing them for contempt of court in instances where as a matter of fact, they have no knowledge of any proceedings. Outside Of organized labor there is widespread feeling that this system often
 works great injustice to wageworkers when their efforts to better their work ing conditions result in industrial dis putes. 4 temporary injunction procured ex parte may as a matter of fact nave all the effect of a permanent injunction | in causing disaster to the wageworkers' side in such a dispute. Organized labor | is chafing under the unjust restraint l which comes from repeated resort to this plan of procedure, Its dscontent has been l unwisely expressed, and often improp- ' erly expressed but there is a sound basis 1 for 1t, and the orderly and law-abiding 1 people of a community would be in a far l stronger position for upholding the courts l if the undoubtedly existing abuses could be provided against
 l Such proposals as those mentioned l above as advocated by the extreme labor i leaders, contain the vital error of being l class legislation of the most offensive | kind. and even if enacted into law l be- 1 lieve that the law would rightly be held unconstitutional Moreover, the labor peo- 1 pie are themselves now beginning to in- l yoke tie use of the power of injunction. 1 During the last 10 years, and within my
 own knowledge, at least 50 injunctions have been obtained by labor unions in 1 New York city alone, most of them be- l ing to protect the union labor Ca property 1 right'D but some being obtained for other 1 reasons against employers The power or | injunction is a great equitable remedy, | which should on no account be destroyed. | But safeguards should be erected against l it's 2puse believe that some such pro-
 visions as those l advocated year ago
 for checking the abuse of the issuance Of
 temporary injunctions should be adopted. 1 In substance, provision should be made
 that TO injunction or temporary restrain
 ing order issue otherwise. than on notice, 1 exoep- where irreparabe injury would
 otherwise result; and in such case hear
 ing on the merits of the order should be
 had within a short fixed period, and, if
 not then continued after hearing, it should
 forthwith lapse. Decisions should be rem
 dered immediately, and the chance of
 delay ninl;mized in every way Moreover,
 believe that the procedure should be
 sharply defined, and the judge required
 miuutely to state the particulars both
 of his action and of his reasons therefor.
 so that the Congress can If it desires ex-
 anime and investigate the same
 The chief lawmakers in our country
 may be, and often are, the judges, be- cause they are the final seat of author ity. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into