CRITICISM OF THE COURTS[50]
The attacks upon our courts which are constantly being published in the press throughout the country disclose a feeling of hostility towards the present system of administering justice that is probably the most portentous sign of our times. That the lawlessly inclined, who are fortunately still in the minority, should be hostile to those who are charged with the duty of enforcing and compelling obedience to the laws of the state or nation is not at all surprising and is perhaps almost inevitable in populous communities. But it is indeed surprising, and a legitimate cause for profound anxiety and misgiving, that thousands of honest, industrious, moral and law-abiding citizens should believe that the laws are not being impartially or justly administered, and that this erroneous belief should be inculcated, not only by the press and unprincipled demagogues and politicians but by reputable leaders of American labor and American public opinion, and even by educators. This belief has become so widespread and so fixed in the minds of vast numbers of our people of all classes, educated and uneducated, that only the most exhaustive consideration and discussion of the subject would be now adequate. Numerous letters received by the sub-committee of the New York State Bar Association, some of which are submitted with its report, show the intensity of the hostility towards the courts and the extent to which it is based upon ignorance, prejudice and malice. The fact that the writers of most of these letters are sincere need not be challenged, but, this being conceded, many of the statements show an utter failure to investigate the facts and an entire indifference to the truth, and some are obviously puerile, or inexcusably inaccurate and reckless. On the other hand, the spirit shown in letters from some of the labor leaders must inspire the hope of their loyal assistance in an impartial and thorough investigation. A great amount of good might be accomplished by cooperation with them. Such a letter, for example, as that recently received from Mr. Hugh Frayne, the general organizer of the American Federation of Labor, indicates that exchange of views might lead to desirable results. However irksome and laborious the task may be, it would be a great service to the country at large if some joint committee appointed by the New York State Bar Association and the other bar associations of the state would undertake to investigate all cases affecting labor or social legislation and publish a report showing the true facts and the principles of law involved in each case. The pity is that many of the critics of our courts are lamentably ignorant of the subjects about which they write or declaim, and—unconsciously and unintentionally in some instances—misrepresent and distort the facts.
It will be practicable at the present time to review only a few of the points suggested by the investigations of your sub-committee.
The subject of just compensation to employees for injuries received in the course of their work is one of the most important and far-reaching of those discussed by our correspondents, and its increasing difficulties and complexities call for much more study than we have been able to give it. The revolution wrought by machinery, the inevitable dangers attending its use, the crowding of men, women and children into factories and workshops require modifications in the rules of law governing the duties and responsibilities of employers. The rules of the common law, which are now condemned by so many and sought to be cast aside, were originally dictated by the soundest considerations of public policy, of practical affairs and government, and of justice as between man and man. The duties of the master toward the servant, as regulated by these rules, were humane and commensurate with the needs of the times that evolved them, and the rules themselves are still proper and just in the great majority of cases. Under them, the master is required to exercise the same degree of care for his servant that he should for his own safety, and he is bound to furnish a reasonably safe place in which his servant is to work, supply reasonably safe implements and machinery, select fellow-servants reasonably competent and prudent, and, where the nature of the business requires an overseer or superintendent, appoint one who is reasonably competent and prudent. The application of these rules regulating the conduct and duties of the master, in conjunction with the rules regulating the conduct and duties of the servant—such as the assumption of the ordinary risks of the employment, the fellow-servant doctrine, and the rule as to contributory negligence—unavoidably creates extremely difficult and complex questions. These rules are still proper and just in their application to such cases as involve the domestic relation between the farmer and his farm hands, the small contractor and his workmen, the householder and his house servants, the butcher, painter, carpenter, or blacksmith and his workmen. In all these cases it is, it seems to us, as true on principle to-day as it was half a century ago that the master is not bound to take more care of his servant than he may be reasonably expected to take of himself, and that a servant has better opportunities than his master of watching and guarding against the conduct and preventing the negligence of his fellow-servant. It is as true now as it ever was that, so long as liability is based on the theory or principle of negligence, a servant ought, generally speaking, to be held to assume the ordinary and obvious risks of the employment upon which he enters and for which he presumably stipulates for adequate and satisfactory compensation. Likewise, in the majority of cases, it is as true to-day as it ever was that the servant who has been guilty of contributory negligence should not be allowed to charge his master with responsibility for the injury. The reasoning of the judges establishing and maintaining these doctrines at the common law has never been refuted. Nevertheless, they are mere rules of law, subject to change, not by the judiciary, but by the legislature; and, in the opinion of the writer, there is no provision in the state or national constitution which would prevent their abrogation if this were deemed necessary or desirable by a legislative body.
But modern industrialism, the development of machinery, the employment of large numbers of men and women in crowded factories, and work in connection with dangerous instrumentalities of manufacture and transportation, etc., have changed conditions, so that what is still true of the farm, the household, the small artisan, the carpenter, the painter, the butcher, the grocer, etc., is not true of the busy hives of manufacture, of transportation by steam or electricity, or of other hazardous industries. The increase in accidents, the apparent certainty that many casualties are inevitable, the recklessness engendered by the modern struggle for existence, the increasing difficulty in many employments of measuring degrees of fault, the pressing necessities and improvidence of the poor: these and other considerations well warrant the interposition of the legislature as the lawmaking power of the state, in order to make changes in the law—changes which the courts should not attempt to make, for their duty or function is not to legislate but to declare what the law has been or now is. Instead, then, of abusing the courts, how much wiser and more decorous would it be for labor organizations, labor leaders, or social reformers to petition the legislature to amend the law, and to abandon the attempt to intimidate and coerce the judiciary into making the desired change. One of our correspondents speaks of "the venomous fellow-servant doctrine." Yet the responsibility for the continuance of that doctrine, if it has become undesirable in any employment or in all employments, rests wholly with the legislature and not with the courts. We should be surprised if any lawyer or student professing the slightest knowledge of American constitutional law would seriously assert that the legislature could not change that doctrine without amending or tinkering our constitutions.
It is, however, fit and proper to add that many lawyers and laymen are convinced that to abolish the existing rules indiscriminately in every case where the relation of master and servant may exist would be a mistake from the standpoint of public policy and practical justice, and that such a radical measure would do more harm than good. Certainly that is the judgment of competent observers of the operation of the British statute. A change in the law which would be wise if confined to large factories and hazardous employments, to labor in connection with dangerous machinery, to service on railroads, in large electrical works, etc., etc., might be extremely unwise, unjust and oppressive if applied, for example, to the small farmer, the artisan, the mechanic, or the householder. A rule concededly wise and just in the one case might be the extreme of folly and oppression in the other. An accident on a farm caused by the negligence or drunkenness of a farm hand might, under some of the proposed reforms or innovations, bankrupt the most prudent farmer for causes quite beyond his control; and a similar disaster might easily overtake the small artisan, mechanic, or householder, and sweep away the savings of years. It is, of course, no answer to say that the farmer, the artisan, the householder employing men or women can insure. Why should this form of taxation be levied upon slender earnings, which are frequently insufficient to make both ends meet? Why should the farmer or artisan of limited means be compelled to pay tribute to private insurance companies so often engaged in combinations to extort the highest possible premiums?
Let every master be responsible for his own negligence, but let the line be drawn short of making every master—every employer of another—the insurer of the safety of his servant to the extent of rendering the master liable for injuries resulting from no fault of his own but from the carelessness and negligence of the servant himself or of a fellow-servant.