New-York tribune., 1910-11-02
yrDGE BALDWIy,s DIscouFITURE.

JTDGE BALDWIN'S DISCOHFTTURF.
Judge Baldwin, in his second reply to
Mr.. Roosevelt, ostentatiously processes
to bring back the discussion 70 the vital
point at issue. and to meet the ex-Pres-
ident's statement. When it is examined.
however, it is found to do nothing of the
kind. 1t states the point. but does not
meet it. Judge Baldwin says:
The passage from your address to
which referred (quoting from the
newspaper repOrD was one in which
after referring to me as a former Judge,
YOU stated that ] was "a man who took
the view that IT was competent for the
workman, when driven to accept any
employment, to bind himself not to be
compensated If he lost his life or limb
"in that occupation.
This statement of Judge BaIdwin's
view as applied in the case of Hoxie
agt. the New York. New Haven & Hart
ford Railroad is declared by the Judge
TO be erroneous. He affirms that he
does not hold that view. and never has
held it, Then. while saying that he
does not object to the characterization of
a "retrogressive Judge but only to Mr.
RooseYelts statement as to his position
concerning contracts waving damage
claims. he goes on at great length to say
that his declaration in the HoXie opinion
as TO the common law rule respecting
fellow servants was sound and necessary
III the absence of legislation in Connect
cut modifying that rule. He entirely ig-
nores the feature of his own opinion de-
claring the federal employers liability
act unconstitutional because it forbade
contracts waving claim to damages. In
that opinion Judge Baldwin said:
The provision of Section that any
contract between an interstate carrier
and any of its employees in such bust
ness. intended to enable it to EXEMPT
itself from any liability created by the
act snail to that extent be void" is in
our opinion, in violation Of the Fifth
Amendment to the Constitution of the
United states. as tending to deprive the
parties TO such a contract of their lib
erty and property without due process
Of law. The contract may be one made
on full consideration by an employe. or
one seeking to become such, who is fully
capable Of understanding its meaning
and effect. He may be the general man
ager Of great railroad system, the dam
ages resulting from the loss Of whose life
His salary may have been agreed on in
view Of this provision of exemption. To
eVade that and yet let the other pro
vision Of the contract stand would of
necessity work rank injustice II would
virtually deprive the carrier of its prop
erty, and-under the construction of that
phrase adopted by the courts of the
United States-do 50 without due proc
ess of law.
The statute cannot be regarded In this
respect as one made for the protection
Of an ignorant and imprudent class. such
as the acts regarding shipping articles.
The employees OF a railroad company are
in general men of more than ordinary
intelligence. The dangerous nature of
the business requires and secures this
II cannot be regarded as one made for
the protection of train hands for II
covers every kind of employees II denies
them, one and ali. that liberty Of cone
tract which the Constitution of the
United States secures TO every person
within their jurisdiction
This declaration absolutely iustifies
Mr. RoOsevelt's statement Everybody
knows that 10 the average employe-
especially an unskilled employe-of a
great corporation freedom of contract to
waive an employers liability is mere
mockeIy. He has no freedom He must
take the terms offered or go without the