New-York tribune., 1910-11-07

at length on Wednesday, pointing out
how the railroad manager who might in
teIIigently want TO make such n contract
at a large salary was used to excrIse the
forcing of such delusive Freedom" on
more dependent employees, who. as Judge
Gray, of the New York Court of Ap-
peals. has shown. do not deal on equal
terms. but may he driven by need 70
bargain away their safeguards of life
and limb Two days later we merely re
turned briefly to the subject to call the
attention of The Sun" to the point OF
discussion. which IL was carefully hiding
behind protestations that Judge Baldwin
had only declared the law of Connecticut
as he found it with regard to the feiloEy
servant rule-an entirely different mat
ter. The Sun says that Mr. Roosevelt
cites for the first time in his third letter
Judge Baldwin's vieF- on Section >. but,
like The Tribune. he fails to include the
context" As matter of fact, he cited
il in his second letter and, though omit
ting the iIlustratioT-which The Tribune
had pubiished-about the railroad man
ager whose freedom of contract might
be hampered, he used this paragraph of
the context, which "The Sun conven-
iently Omits:
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 the shipping
articles The employees Of railroad
company are in general men Of more
than ordinary intelligence The dan
gerous nature of the business requires
and secures this. It cannot be regarded
as one made for the protection of train
hands, for it covers every kind of en-
plOves 1t denies them. one and all.
that liberty OF contract which the Con-
stitItion of the United States secures
TO every person within their jurisdic-
tiOn.
II. as "The Sun" suggests. Judge Bald
win meant 10 draw q distinction between
the workman and the high salaried Of
ficer. and declared the act unconstitu-
tional merely because it included the lat
Ter. he took a curious way of showing 1t
when he went on to argue that the ord1-
nary employees. because of the dangerous
natnre of their business-obviously in
cIuIiuc the train hands-were more than
ordinarily intelligent and therefore not
entitled to protection against contracting
away their rights. These men are GER
tainIy ordinary "wOrkmen.' yet the law
is void as 10 them, not merely because
as suggested by THE SUM- they cannot
he senarated from the high Salaried Off
cials under its terms, but because they
themselves are deprived of liberty or con-
tract. The Judge indicates as clearly as
words can do it that quite regardless d
the application of the law 10 general
managers, he holds it unconstitutional TO
make it apply TO engineers and fremen,
who from the dangerous nature OF their
work must be presumed lntellgent
enough TO protect themselves.
But even more significant than the
view itself as a justification of criticism
is the place which that view holds IN
the opinion. Chief Justice Taney mas
gone down to history under the universal
condemnation of bench and bar for MS
extra judicial declarations in behalf of
slavery. Having held that the federal
courts had no jurisdiction In the Dred
Scott case. he then went on TO tell tne
country that the legislation of thirty
five wears in behalf Of freedom was IN
constitutional Judge Baldwin. after de-
Gliding that the state courts had no juris-
diction under the federal employers lla
bilitv law. went on in the same fashion
10 tell the country that the act itself.
whose requirements he, AS q state judge
held 10 he outside his jurisdiction, was
a violation of the federal Constitution.
He used his personal prestige IN an
extra-iudiciaI dictum to block efforts for
Industrial amelioration, holding that not
only railroad manager, but even an In
teIIigent train hand-a workman -
could not he deprived Of the right 10
waive all claims for injury or death