Magna Carta, and Other Addresses

by William D. Guthrie

The principle involved in this Bakers case was universal, and if employers in bread, biscuit, or confectionery factories could be made criminals for permitting their employees to labor more than ten hours in any one day, the legislature could enact similar legislation as to every other employment. No court would then have power to regulate the degree of the exercise of legislative discretion in such cases. The provision, which at first limited the workday to ten hours, could thereafter be changed to eight hours, or even to six hours, as was advocated in More's "Utopia."

In February of this year, Mr. Roosevelt delivered an address before the Ohio constitutional convention, in which he discussed the decision of the Supreme Court of the United States in the Employers' Liability cases,[16] decided while he was President. The court then held that the act of Congress of June 11, 1906, sometimes erroneously called the National Workmen's Compensation Act, attempted to regulate the internal affairs of the several states as well as interstate commerce, that it consequently included a subject not within the constitutional power of Congress, and that the two matters were so blended that they were incapable of separation unless the court made a new statute in the place of the one enacted by Congress. Conscientiously entertaining this view, the majority of the court would have been guilty of the plainest constitutional immorality if they had not declared that the act was beyond the power of Congress and declined to give it effect. No honest men, believing as the majority did, could have done otherwise than obey the constitutional mandate expressly reserving to the states the legislative powers not delegated to Congress. In the light of the long-established and wise rule that courts should avoid judicial legislation and not revise or give effect to a statute in a manner not clearly intended by the legislative body, the justices could not, of course, have upheld and enforced the statute simply because the individual cases before them excited their sympathy or involved the claims of widows. The remedy was obvious and simple. Congress was then in session, and within a few days an amended statute could have been enacted so as to limit the act to interstate commerce, which alone was within the constitutional power of Congress to regulate. After the lapse of three months, such a law was enacted, and being plainly confined to interstate commerce, as the original statute should have been, and would have been if properly and competently drafted, the amended act was unanimously sustained by the Supreme Court as constitutional in the Second Employers' Liability cases, decided this year,[17] when it was held that Congress had power to change the common law rules as to assumption of risk, contributory negligence and fellow-servants' acts in connection with the regulation of interstate commerce.

Speaking of the first decision, Mr. Roosevelt said: "When I was President, we passed a National Workmen's Compensation Act. Under it a railway man named Howard, I think, was killed in Tennessee, and his widow sued for damages. Congress had done all it could to provide the right, but the court stepped in and decreed that Congress had failed. Three of the judges took the extreme position that there was no way in which Congress could act to secure the helpless widow and children against suffering, and that the man's blood and the blood of all similar men when spilled should forever cry aloud in vain for justice. This seems a strong statement, but it is far less strong than the actual facts; and I have difficulty in making the statement with any degree of moderation. The nine justices of the Supreme Court on this question split into five fragments. One man, Justice Moody, in his opinion stated the case in its broadest way and demanded justice for Howard, on grounds that would have meant that in all similar cases thereafter justice and not injustice should be done. Yet the court, by a majority of one, decided as I do not for one moment believe the court would now decide, and not only perpetuated a lamentable injustice in the case of the man himself, but set a standard of injustice for all similar cases. Here again I ask you not to think of mere legal formalism, but to think of the great immutable principles of justice, the great immutable principles of right and wrong, and to ponder what it means to men dependent for their livelihood, and to the women and children dependent upon these men, when the courts of the land deny them the justice to which they are entitled."

Now, if this argument meant anything it certainly meant that, in the opinion of the speaker, an ex-President of the United States, the justices of the Supreme Court should have disregarded the Constitution as they understood it in order to allow a widow to recover notwithstanding the unconstitutionality of the act under and by virtue of which she was suing. You will not find a single word of reference by Mr. Roosevelt in his whole address to the only point upon which the majority, speaking by Mr. Justice White, decided the cases. Of course, the statement of what was actually decided would have been tame and unsensational. The criticism in form and substance was based upon a distorted and unfair statement of what was decided, and it was calculated to create in the minds of the members of the Ohio constitutional convention, as well as in the minds of the uninformed public, the belief that the justices of the Supreme Court of the United States had "set a standard of injustice for all similar cases" and had denied to Congress the power to pass a fair and just employers' liability statute properly limited to interstate commerce. The contrary was plainly the truth, as the subsequent decision of the court had clearly shown, for this latter decision was rendered and published before Mr. Roosevelt made his address.

Another example of distorted statement and unfair criticism of the courts will be found in the same address. It related to the decision of the New York Court of Appeals in the case of Ives vs. South Buffalo Railway Company,[18] decided last year, in which the court held that a statute concededly novel and revolutionary, creating liability on the part of an employer to his workmen although the employer and his agents were wholly free from negligence or fault of any kind and had neglected no duty of care, supervision or selection, was unconstitutional because taking the property of the employer and giving it to the workman without due process of law. Ives was a brakeman employed by the defendant railway company. While walking on the top of the cars of a very long train, he gave a signal to the engineer to close up a space or slack and was thrown to the ground by the resulting jar, concededly without any negligence on the part of the railway company, and probably through his own carelessness. The injury consisted of a sprained ankle and slight bruises. There was no claim in the complaint that the injury was in any sense permanent, and as matter of fact Ives sued for loss of wages during only five weeks, claiming fifty dollars as the measure of his damage. I am informed that the injury was not serious, that Ives entirely recovered and resumed his work within four weeks after the injury, that the railroad company ultimately paid him for his loss of time, that he has since been continuously employed by the same company at similar work, and that in no sense whatever was his ability to earn his livelihood impaired.

Let us turn to the picture drawn by Mr. Roosevelt in describing this case for the instruction and guidance of a constitutional convention. "I am not thinking of the terminology of the decision, nor of what seem to me the hair-splitting and meticulous arguments elaborately worked out to justify a great and terrible miscarriage of justice. Moreover, I am not thinking only of the sufferers in any given case, but of the tens of thousands of others who suffer because of the way this case was decided. In the New York case, the railway employee who was injured was a man named, I believe, Ives. The court admits that by every moral consideration he was entitled to recover as his due the money that the law intended to give him. Yet the court by its decision forces that man to stagger through life maimed, and keeps the money that should be his in the treasury of the company in whose service, as an incident of his regular employment and in the endurance of ordinary risks, he lost the ability to earn his own livelihood. There are thousands of Iveses in this country; thousands of cases such as this come up every year; and while this is true, while the courts deny essential and elementary justice to these men and give to them and the people in exchange for justice a technical and empty formula, it is idle to ask me not to criticize them. As long as injustice is kept thus intrenched by any court, I will protest as strongly as in me lies against such action."

To repeat, as a matter of fact, Ives was not maimed; he was not permanently injured; he was not deprived of the ability to earn his livelihood. Nor did the Court of Appeals admit that by every moral consideration Ives was entitled to recover as his due the money that the law intended to give him. Had that point been before a court of justice, however sympathetic and sentimental, I doubt very much whether it could have held that Ives was entitled, by any moral consideration whatever, to compel the railway company to compensate him for the four or five weeks' loss of wages resulting from no fault on its part but from his own carelessness. The statements that "the court by its decision forces that man to stagger through life maimed" and that "he lost the ability to earn his own livelihood" were simply so much fiction, but, of course they were very effective with emotional audiences and highly calculated to inflame Mr. Roosevelt's hearers and readers against the courts. I venture to assert that it would be difficult to find or indeed to conceive a more unwarranted and unfair misrepresentation of the facts actually before a court.

Another current misrepresentation is that the Supreme Court of the United States in the Second Employers' Liability cases upheld as constitutional a statute of Congress identical with the statute held unconstitutional by the New York Court of Appeals in the Ives case. The people are being told that the New York courts hold the provision requiring due process of law in the fourteenth amendment to mean one thing, whilst the Supreme Court of the United States holds exactly the same provision in the fifth amendment to mean the contrary. But those who will take the trouble to read the two statutes will at once perceive that the act of Congress differs radically from the New York Workmen's Compensation Act. The act of Congress, although abolishing or restricting the rules as to fellow-servants' acts, assumption of risk and contributory negligence, imposes liability on common carriers by railroad only for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." On the other hand, the New York statute created liability not in one dangerous employment, such as the business of common carrier by railroad, but in many other employments not necessarily dangerous, and wholly irrespective of negligence or fault on the part of the employer or any of his officers, agents, or employees. In fact, there is nothing in the New York decision or in the opinions of the judges which would invalidate a statute identical with the act of Congress if now enacted by the New York legislature. The Ives case, far from preventing such a statute, would be an authority in its support.

I regret that we have not time to consider further these particular decisions. In my opinion they correctly and wisely applied established principles of constitutional law and constitutional justice and were morally right and just. I am now pleading for fairness and temperance in discussing the decisions of our courts and for the imperative necessity of founding these discussions upon the truth. Ambassador Bryce said in a recent address: "To counsel you to stick to facts is not to dissuade you from philosophical generalizations, but only to remind you ... that the generalizations must spring out of the facts, and without the facts are worthless." In other words, a regard for fact, which is but another term for truth, is or should be as indispensable in law and politics as it is in philosophy.

The criticisms of which the above are fair samples must be refuted because they find constant repetition and have the authority of distinguished leaders of public opinion, who at the present time seem to have the confidence of the people. Their statements are naturally accepted as true. The judges are being similarly misrepresented and assailed on all sides, and they cannot defend themselves. Thus far the bar at large has seemed indifferent, and a misconception of what constitutes good taste imposes silence upon the counsel engaged in the cases which are criticized. The people are being misled, prejudiced and inflamed by false statements and unfair criticism. If the courts are not defended, they may bend before the storm of undeserved censure. Constituted as humanity is, there is grave danger that the judges will be unconsciously intimidated and coerced by this abuse and clamor. Is it not high time that the members of our profession should charge themselves with the task of defending the courts by placing the facts before the people? The bar associations of the country will never be called upon to render a greater service to the profession and to the community than that of stemming this tide of misrepresentation and intemperate abuse and striving to restore confidence in the learning, impartiality and independence of our judges, in the justice of their decisions, and in the necessity of their enforcing constitutional restraints.