Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1910-11-05
BASIS OF CRITICISM.


"In your answer to my letter you
entirely miss the point Of the crit-
csms. l am not interested in your
opinion as a law writer; I
am Interested in your opinion
us n judge. My criticism OF you
as a roactlonury was based, not upon
what you may have said as Ia law
writer, but upon what you did us Il
Judge. Your long citations from de-
cisons In courts Of Connecticut are
entirely irrelevant ana beside the
point, l know. as every layman knows,
that 1t is not Il function Of a judge
to make new laws. When there Is no
statute enacted by the law-making
bodies Of the people, the courts are no
doubt bound to follow precedent The
question between MS does not involve
any such principle
In the HoXic case you had before
you definite statute, enacted by the
Congress of the United States, de-
claTng the responsibility of railroads
to their employees for negligence.
Section five Of that act provided That
any contract. rule. regulation or de-
vice whatsoever, the purpose or intent
of which shall be to enable any COM
Moh-carrier to exempt itself from any
liability created by this act, shall, to
that extent, be void
In that act Congress declared that
every empioye should have certain
new legal rights of compensation for
injuries occasioned by the negli-
gence by the railroad itself. In plac-
ing this clause which l have quoted in
the act Congress was no doubt in
iiucnced by the well known fact that
in England an employers liability act
enacted many years ago was made n
dead letter byaemploycrs insisting that
their employees should sign contracts
agreeing to waive the benefits of tho
statute and go without the legal right
which the statute proposed TO give
them.
I'm the case decided by YOU which
have criticized. YOU declared that this
clause was unconstitutional as being
in violation Of the fifth amendment to
the Constitution OF the United States
as tending to deprive the parties to
scch a contract Of liberty and prop
erty without the process of law YOU
us toSrailway employees.
II denies them, one and oil. the
liberty of contract which the United
States secures to every person within
its jurisdictions
SUBSTANCE or DECLARATION.
Your declaration speaks for itself.
In substance ii amounts to stating that
the employees right to give up their
rights under tho law is Il thing to be
protected and not their right to re-
ccivc those benefits: that the right To
contract to get killed is property OF
which they cannot be deprived: that,
the right to get killed comes under
the head of life. liberty and property
which under the fifth amendment TO
the United States Constitution cannot
be taken away without due process Of
law.
Congress aimed at giving tho rail-
road cmPloye IL substance You con-
strued the act as giving him a shadow
byssolemnly declaring that 10 give him
the substance Is to take away his
in the shadow.
II criticized your decision because 1t
is to me an incredible pcrversion OF
the Constitution of the United States
J criticized 1t because 1t Is not only
but revolutionary.
criticized ii because ! am against
decision like 1t makes for Socialism
or something worse. Every strained
of the Constitution which
declares that the nation is powerlesS
to remedy industrial conditions which
cry for law gives aid to those enemies
Of our American systom OF govern
ment who wish to furnish in its place
some new. vague and foolisht5 sub
stitute. Nh
WHAT COLONEL IS FOLD.
Tho result which you attempted to
accomplish in this decision would PRO
ducc. | am told, II strange anomaly.
The United States supreme court has
held that public policy would not per-
nit a railroad company to make con-
tracts with shippers OF freight, that
n ~,