New-York tribune., 1912-11-05
ROOSEVE[T'S ATTACK
ON COURT R|DDLED
EIihu Root, John G. Milburn,
Louis Marshall and w. D.
Guthrie Answer Colonel.
DISCUSS RIGHTS OF LABOR
Candidate Replies to Lawyers
by Referring to Florence
Kelley's Book on
Sweatshops.

Four leading members of the New York
bar-Elihu Root, John G. Milburn, Louis
Marshall and William d. Guthrie-have
taken issue with Colonel Roosevelt In his
criticism Of the New York Court OF Ap-
peals made last Friday night In Madison
Square Garden. In signed Statemehl
issued by them yesterday they say MS
speech Friday evening contains 30 many
inaccurate statements calculated 10 mis-
lead voters that It is fit and proper, ana
we deem 1t our duty. to state the true
facts in regard 10 the decisions he as
sails" The statement continues:
The first case that Mr. Roosevelt crit
cises is the tenement house case lsS ~. L.
9S) in which a man named Jacobs was
prosecuted cTiminally under an ACT Oh 'lie ne
Legislature for attempting 10 carry w,
his trade of cigar making IN ms xi oMn
home. He lived in the City OF Ne" ioln
with his wife and two children IN an
apartment of seven rooms, In q puiluiLie
I'm which there were three other apdI I
ments OF equal size. lie maze cigars "a "a
rooms of this apartment wholly sepdFate1
from the sleeping and COOKING rooIlis' that
the undisputed testimony showed ,thas
there was no Odor OF tobacco In any ot
the sleeping or cooking rooms ana thdt
the surrounding conditions were enliltlS
sanitary. In fact, Jacobs was carry ing ing
on his trade in his home for the support
of himself and his family under condl-
tions much healthier than II ne had Deei'
compelled TO work In a crowded factoTy, +,
particularly in 1854 and 1885, when lheIe
were no such sanitary regulations as no"
prevail in factories under the operation
of our present public health ana laOoF
The Board Of Health Of the City OF New
York officially declared IN speaking Oh
this act that the health OF the tenement
house population is not jeopardized by the
manufacture Of cigars in those houses
that this bill is not a sanitary measure,
and that II has not been approved Dy
this board" The statute, as was wen
known at the time, was passed in the in
terest and at the request OF the owners
OF large tobacco factories In the cities or
New York and Brooklyn. who sopBht
thereby TO suppress the competition u.
cigar manufacturers AT home. IL was hol
an honest health measure at all; IL was
not designed 10 protect the health OF To-
baccO workers or to secure cleanliness III
connection with the manufacture OF 70
bacco, and It did not contain single
provision tending in any degree 10 I'M
prove conditions Of living.
The act would have crushed the com
petition OF home workers with the To-
bacco factories, and. II constitutions,
then similar statutes could nave peen
passed with respect 10 all kinds or nome
work, and artisans, whether men or wom-
en-, could have been driven Into factories
at the dictation OF factory owners VINO
had sufficient political influence 70 secure
the necessary legislation. Mr. Roosevelt
practically asserted Friday evening that
the Court OF Appeals had declared II IN
constitutional for the Legislature 10 pre-
vent the manufacture OF tobacco IN a
home Of but one room about sixteen teet
square. in which there lived two families.
one with a boarder."
Power Of the Legislature.
AS a matter Of fact. the plain truth IS
that there was nothing In the decision or
the court which in the remoteHt degree
questioned the full power OF the Legls-
lature to pass and enforce statute pro-
hibiting the manufacture OF tobacco IN
sleeping or cooking rooms or under any
unhealthy conditions whatever since
that decision, and without any COnstitu-
tional amendment whatever, az is well
known, the Legislature Of the state or
New York has repeatedly dealt with the
subject of tenement house reform ana
has prevented any such conditions as
Mr. Roosevelt mentioned.
The next decision OF the Court or hp-
peals which Mr.. Roosevelt criticised ~
that OF an adult woman named Knisley
l4s n. Y. 372) who while working In n
hardware factory in Buffalo was Injured
by having her hand crushed In a ma
chine which had uuEuarded cog wheels
contrary TO the statute As the danger
WAS proved 10 nave becH NlSihlf anu
plainly known 10 her, the court held that
under the long settled rules Of the COM
mon law as 10 contrbutory negligence
and assumption OF risks II was con-
strained TO hold that the plaintin could
not recover, Notwithstanding it's sym
pathy for her In this report u followed
the decisions Of the courts OF Nassachu-
setts and England under similar statutes,
OF course. the court was bound to en-
force the law as y conceived IL 10 be.
% . Ia 40 s4n q
on Friday evening said as follows: The
Court OF Appeals threw out the case and
declared the law unconstitutional on this
ground: That the Legislature could not
Interfere with the liberty Of that girl in
losing her arm . . The trouble was
that they knew law, but didn't know
right, and still more, as / have stated
they had arrogated TO themselves the
right that the people should have-the
right 10 decide what the common sense
and Justice Of the people demand" Yet
there was not one word In the opinion or
the Court Of Appeals which suggested
that the act was unconstitutional or that
the Legislature did not have power 70
change the common law rule in such
cases and 70 make the employer liable TO
hts injured employees for failure TO com
never declared that such a statute would
be unconstitutional.
Hours Of Labor for Women.
The next case which Mr.. Roosevelt
criticised on Friday evening is known as
the williams case 1S0 y. Y. l3D, in
which an act of the Legislature was held
unconstitutional. which In its effect pre-
vented woman from working at her
trade after 8 o'clock at night. entirely
Irrespective Of the number Of hours that
she might work or the few occasions
upon which she might be called upon TO
work at night.
Mr. Roosevelt criticised this decision in
the following language: Again we passed
a law In this state. We found by inves-
tigation that In certain factories ana
sweatshops women We're working twelve,
and fourteen, and fifteen hours day.
and up until after midnight. But
the Court OF Appeals In New York de-
cided that We could not pass that type
AS a matter OF fact. the Court of APP
peaIs decided nothing OF the kind. 1t did
not hold, or even intimate-and II
has never held or intimated-that the
Legislature could not limit the num-
Der Of hours which woman may
work. II had previously decided that the
Legislature could limit the hours OF la
bor, The only question before the court
was whether an adult female. who had
learned the trade OF a binder, could De
prevented by statute from working at
that trade after o'clock at night under
perfectly sanitary conditions. even though
she might not have worked an hour be-
fore night, or might only need 20 work
an hour or two at night in emergencies
The underlying or fundamental question
was whether women could be driven out
OF that trade and compelled TO seek
livelihood In other occupations for which
they were less fitted, for smaller pay,
and under Infinitely worse conditions.
Welt stated in THE Saturday Evening
Post" published week ago. under the
head OF THE Deceitful Red Herring"