If during the King's reign I have ever supported his government and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honor the King and respect the people; but many things required by the favor of either are, in my account, objects not worth ambition. I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent or that the credulity of a deluded populace can swallow.
The two qualities which make a great judge are wisdom and moral courage. No great judge ever lived who did not possess them both. When the Phelan case was on trial before Judge Taft, it was a time of tremendous excitement. It was the very crisis of a great strike. The friends of the Judge feared for his life and asked him not to read his decision from the bench. He read it. The last sentence of that decision directed the marshal safely to convey Phelan to the Warren County Jail. When he read that final sentence he turned to the packed court-room and looking squarely into the angry faces before him said: "If there is any power in the army of the United States to run those trains, the trains will be run." To those who honor judicial courage no less than judicial wisdom, such occasions deserve to be recalled and remembered, for they are part of the great traditions of the bench.
But these decisions are not solely declarations of public rights. They contain statements of the legal rights of labor organizations in strikes, stated so clearly that the decisions have been cited time and again in subsequent litigation by labor organizations themselves as precedents in their favor. They affirm unequivocally the right of labor organizations to strike to better the condition of their members, and the right to use peaceable persuasion to prevent other employees from taking the place of strikers, a right which in some jurisdictions, particularly Pennsylvania, has been denied.
The Right to Strike
Quite apart from his judicial decisions, Taft's position on the strike question is clearly stated in public addresses. Last January, at Cooper Institute, he said to an audience of workingmen: "Now what is the right of the labor unions with respect to the strike? I know that there has been at times a suggestion in the law that no strike can be legal. I deny this. Men have the right to leave the employ of their employer in a body in order to impose on him as great an inconvenience as possible to induce him to come to their terms. They have the right in their labor unions to delegate to a leader power to say when to strike. They have the right in advance to accumulate by contributions of all members of the labor union a fund which shall enable them to live during the strike. They have the right to use persuasion with all other employees who are invited to take their places in order to convince them of the advantage to labor of united action. It is the business of the courts and the police to respect these rights with the same degree of care that they respect the owners of capital in the protection of their property and business."
No public man has placed himself more clearly on record on the so-called injunction question. The plank of the Republican platform which advocates a modification of the present federal court practice, under which injunctions are issued without notice to organizations sought to be enjoined, is a plank adopted at Mr. Taft's request and suggestion. The jurist who, in a decision in the coal mine cases of 1902 in West Virginia, described an organization which has done more for the coal miners than any other social force, the United Mine Workers, as a band of walking delegates fattening on the poor and ignorant, declared in the same decision that no injunction had ever been issued in strike cases which was not entirely justified by the facts. Judge Taft says this is not true; that such injunctions have been issued unjustly; and in his Cooper Union address he said:
But it is said that the writ of injunction has been abused in this country in labor disputes and that a number of injunctions have been issued which ought never to have been issued. I agree that there has been abuse in this regard. President Roosevelt referred to it in his last message. I think it has grown largely from the practice of issuing injunctions ex parte, that is, without giving notice or hearing to the defendants.... Under the original Federal judiciary act it was not permissible for the Federal courts to issue an injunction without notice. There had to be notice, and, of course, a hearing. I think it would be entirely right in this class of cases to amend the law and provide that no temporary restraining order should issue until after notice and a hearing.
He at the same time expressed himself in favor of having contempt proceedings for violations of injunctions heard by a judge other than the one who issued the injunction. But to the proposal that in such cases the ancient power of the courts to protect their own dignity and authority be taken from them and turned over to juries of laymen selected by interested parties and subject to all the passions and prejudices inevitable in such trials—to this he is opposed.
The Laborer's Right to Protection
One decision of Judge Taft's on a highly important labor question has been generally overlooked and deserves mention. The interests of labor in the law are not confined to strike questions. Its rights in peace are no less important than in war. The working people are deeply interested in the enforcement of laws which protect them against unnecessary dangers in employment. The position of Judge Taft on this important question is best shown by the contrast made by one of his decisions (Narramore vs. C., C., C. & St. Louis Railroad Co.) with the leading case in New York on the same subject. Both of these cases involve statutes directing employers to furnish certain specific protection for the safety of employees. In both cases the employer failed to obey the law which required the furnishing of that protection. The New York Court of Appeals decided that notwithstanding the statute, if the employee stayed at work knowing that the employer had not obeyed the law, and knowing the danger created by the employer's failure to obey the law, by the mere fact of his remaining at work, the employee assumed as a matter of law the risks of being injured and could have no claims against the employer for injuries so sustained. This construction obviously makes the protective statute a dead letter and absolutely worthless.