New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-12
Mr.. ROOSEVELT'S WARNING
Discussion of Workmen'S Com.
penSati0n Decision and "Judge.
Made Law"

SAYS.
Il have received from one Of the most
eminent jurists and one Of the most gen
timely conservative-and therefore genu-
inely progressive-men in the United
States. a comment on this New York
decision which puts the case so admirably
that I quote II almost in fun
II is remarkable example OF special
pleading -anoUer illustration that in many
American courts property Is more sacred
than life. The point IN the decision thai
due process" meens the procedure which
| was enforced when tho fedora Constitution
was adopted has been repudated again
and again by the Supreme Court Of the
| United States. Tho decision is individual
/ istc. II excludes all public considerations
II sees In tho enforced payment simply the
| taking of the money OF the defendant and
giving. it TO the plaintiff. The law could
| have been sustained as proper exercise
OF the police power upon either OF two
| grounds ~ Society has the right to 70
! quire any business which directly produces
orphans. widows and cripples TO provide
! for their support ~ The most effective
| method of compelling dangerous employ
ments to- safeguard their employees IS 10
make them financially responsible for in
I iuries. In Germany within I'VE wears after
| an absolute liability was imposed the
number of accidents reduced So per
! cent The court spends half OF tho opin-
7 ION deDloring the injustice Of the existing
that law? The American courts. II Il
/ wholly Of their making For seventy-ive
years. while the whole industrial world
has been changed. tho courts have deVel-
| oped our present law without any heed
/ TO the change All attempt 10 amsliorat "a
that law has come from the Legislature
and. as rule. the courts have given such
legislation the narroWest possible effect
/ II one wants an argument 70 prove that m
American courts property has been more
sacred than life he needs only N point
10 the existing deploranle law Of ms or or
and servant. They made that law Juey
have modified ~ from time 20 time, ana
always IN the interest of the master.
The New York court. admitting that
/ the existing law Is cruelty unjust, sun 81
/ that the remedy which I'll the rest ~ the
| civilized world has found ~ 10 best r.
unava ia hle N the American people "linolt
an amendment of the Constitution. mat
I J. Il fair example II the uees which M .
been made " American constitutions
. have msdA careful study ot consufutlonal
decisions since $50 m the courts ~ New
/ York illinois and california A. rue,
laws which they have declared unconSti-
I titional were adopted 10 correct admitted
J industrial or social eyilS-such evils -
every other civilized country IN the world
/ has bsen correcting bv legislation. They
/ dealt with such subjects a. sweat shops.
hours Of labor for women. ages ~ "hl'n
children could he employed. conditions ot
mines. the requirement that Norkme1
should he paid IN cash or its e7nivslen''
etc etC. This study raises the question
Are tle American p@ople loss free man
other civilized people, our CONSTITUTIONS
tyranny. and they are nov most frequently
/ used 20 protect those who Cypress women
and children and lahorers. When soolHty
attempts 10 redress ifs wrongs n IS tod
/ that its measures are uncOnstitut onal
The battle Of society IS not with "ronE
but with the Constitution. In our legis-
I latures the debate IS not about the WIS
dom Of measures hut thei- constitutional
/ itv Laws are often obscure and indirect
800 order 10 get round the q onsiifuilon.
Every enemy OF the common good takes
his stand on the Constitution and IS safe
In my Judgment this IS an utter perversion
Of constitutions II ia not the first
time that institutions which We're devised
10 protect society have been seized upon
nv class and made fearful engine of
. oppression n will b. noted that these re-
cent uses IF constitutions 10 not proceed
from any specific language in those lnstru-
ments. All the decisions are based upon
. such general terms "a liberty and prop
ertv." and tho inhibition Us found not IN
the language 81 the Constitution hut In the
have made Of these general terms Looked
az in large way. the three terms or
American constitutions. "life, liberty ana
property" embrace every concern or gov
eminent: and II they are TO be given
speculative Interpretation every act or the
/ state can be brought under review nv inc
courts These words have heen tatnilar
i'm English and American CONSTITUTIONAL
law for centuries Down 70 1870 liberty
meant freedom from imprisonment. ana
property meant tangible property and It's
use Since is75 the doctrine has been punt
10 bv American courts that liberty en-
braces every activity Of ltfe. and prop
erty" every business right OF man. FROM
these new definitions has sprung our new
constitutional law. under which constitu-
lions that we're intended 10 protect society
against tyranny have become Instruments
10 defeat every effort Of society 20 redress
admitted wrongs Either American courts
will make q different use Of constitutions
or constitutions VIII become so odouS tnat
they will be thrown out Of the back WIN
DOW That will be a serious misfortune
TO the United States. We need the steady
ing Dower Of written constitutions But
We will not submit 70 being perpetlaly
frustrated in tho accomplishment OF those
industrial and social reforms which every
other free people in the world Is free 70
accomplish.
Continuing. ,Ir Roosevelt earnestly
calls the attention Of the representative
Of the great capitalists to the final words
Of this statement and adds:
fail 10 see how any thoughtful man
can read what | have above quoted and
not see that this decision OF the Court OF
Appeals ~ the state OF New York is
case not really OF Interpretation OF the
law but Of the enactment OF JudSe-made
law in defiance ~ legislative enactment
and in defiance Of the Interpretation or
other legislative enactments by the highest
courts OF this country Whatever the
form the substance Of the action OF tho
Court Of Appeals is not the Interpretation
Of law but the making OF law. and the
making Of IN i'm way oppressive, we'll
nigh ruinous. 10 the interests Of the wage
workers and indeed 10 society as a whole.
II is ont OF the question that the courts
should be permitted permanently 10
shackle our hands as they would shackle
them hy such decisions A. this. "a the
decision bv the same court many years
la hpUge
ca Sos and the decision IN the bakeshOp
cases shackled them. Such decisions are
profoundly auti-social are against the In
teres,s Of humanity and toll for the dcgra-
dalton Of 4 very large portion Of our COM
munity. and. above all, they seek 10 es-
tahlish as an immutable principle the
doctrine that the rights Of property ara
supreme over the rights Of humanity. and
that this free people. this American people.
is not only forbidden 10 better the cOnd-
tons Of mankind but cannot even strive
10 do the elementary Justice that. among
even the m0narchies Of the Old World
has already been done by other great IN
dustrial nations.
tho courts should have the fullest power
necessary 10 make them efficient Where
they do not abuse this power II IS To our
interest 10 leave them undisturbed. |
rrouid far rather see them thus left undis-
turbed. and ii is for this very reason that
have again and again urged wide public
comment upon their decisions, not merely
a a right but as DUTY. ana especially IN
the interests Of the courts themselves.
I'm, perseverance, I'm rendering decisions
such as those alluded to above. such de-
cisions "a this ~ the Court " Appeals of
the state OF New York. would In the end.
render IL absolutely necessary for the
American people. at whatever cost. 10 in
sist upon having more direct control over
the courts
MISS BOURNE WEEDS IN ENGLAND