Magna Carta, and Other Addresses

by William D. Guthrie

An interesting example of the operation of a statute in connection with established rules of law will be found in the case of Knisley vs. Pratt.[51] The legislature had prescribed certain devices for the protection of women and children, including a provision that cogs on machinery should be properly guarded. In enacting this provision, as the courts were bound to assume by the settled rules of construction, the legislature was fully aware of the existing law in the state of New York in regard to the assumption of obvious and ordinary risks of employment by men and women of full age and capacity. The plaintiff in the Knisley case was a woman of full age and capacity, and she was well aware of the danger she was running in approaching too near machinery in operation. Had the statute been competently drawn, it would have provided—assuming, of course, the draftsman and the legislature so intended—that the rule of assumption of risk should not apply to cases within its purview; in other words, it would have provided that the master should be liable for any injury to a servant arising from the master's neglect to furnish the protection required by the statute whether or not the servant knew of such neglect or contributed in any way to his own injury. No provision of state or federal constitution prevented the legislature from enacting that the employer should be absolutely liable for the consequence of his own deliberate neglect to obey a statutory provision intended to protect human life and particularly the lives of women and children. There is not the remotest intimation by the court in the Knisley case that the legislature could not so alter the law. After the decision in that case had been announced, a change in the law could have been readily made within a week, for the legislature was then in session—February, 1896. Yet seventeen years have passed without such an enactment, and in the meantime the Court of Appeals has been assailed before the whole country for its lack of sympathy with the poor and helpless and with social progress as evidenced among other things by this decision!

It is true that the doctrine of the Knisley case has been recently overruled by the Court of Appeals in the case of Fitzwater vs. Warren.[52] But many lawyers believe that the court might better have left this change to the legislature, which could have made it seventeen years ago if it had so desired, and not have furnished additional ground for the criticism that our courts are resorting to judicial legislation. Despite the Fitzwater case, it would still be wise for the legislature, if it deems that the rule of law should be as now announced, to enact a properly drawn statute declaring that whenever a statutory provision requires a master to supply guards or other protection for his servants in hazardous employments or in connection with the use of dangerous machinery, his neglect to do so shall render him liable irrespective of the doctrines of assumption of risk, fellow-servant's fault, or contributory negligence.

The manner in which nominations have been made in recent years for judicial office and particularly for the Court of Appeals has also invited very serious criticism on the part of our correspondents.

As is well known, the bar of the state of New York, with almost entire unanimity, has been endeavoring for many years to separate nominations for judicial office from other nominations, and thereby to divorce the bench from politics. It was the bar that has urged and forced the renomination of judges for the Court of Appeals on a non-partisan basis. It was the bar that urged and forced the renomination and election of Judge Gray and Chief Judge Cullen and other members of our highest court. It is simply slanderous to charge that any of the present judges of that great court were nominated at the request or dictation of what our correspondents call "the interests." The contrary is the truth; and the whole history and conduct of the court refute an accusation which is as contemptible as it is unfounded.

The bar of the state was practically unanimous in urging the passage last year of the measure known as the Judicial Candidates Bill, which proposed that the names of judicial candidates should no longer be printed in the party column on the general and official ballot, but on a separate ballot, or in a separate column of the voting machines, without party designation in either case, to the end that candidates for judicial office might be voted for as individuals and not as members or candidates of any political party. There was then an excellent opportunity for the professed social reformers and labor leaders who are so vehemently assailing our judicial system to aid in a movement to eliminate from politics the election of judges. But it was not availed of. The bill was defeated. It had little support from the press and very little, if any, support from social reformers or the representatives of labor. It will undoubtedly be introduced again this year; it has been once more approved by the Association of the Bar of the City of New York, and it will probably be again approved by the state association and by the bar of the state at large. Let the labor organizations now assist and cooperate in procuring the enactment of this law, and help to secure the election of judges on their own merits and personal character apart from considerations of political service or the favor or support of political leaders or bosses, or of any particular class.

A few years ago in the city of New York an earnest attempt was made by the bar to secure the election of justices of the Supreme Court on a non-partisan and non-political basis. A committee of members of the bar nominated lawyers of the highest standing in their profession, of recognized ability and learning and of unimpeachable character. These nominees were defeated, and to that defeat the labor organizations greatly contributed. These organizations then gave no support whatever to the movement to secure a separation of the courts from politics, and they were quite indifferent to the nomination of men of the highest character and of the highest qualifications for judicial office.

The plain truth on this point may serve and be useful as an object lesson. The least competent and the least experienced of the justices of the Supreme Court in the county of New York and elsewhere throughout the state are generally those who have been nominated because they were endorsed by labor organizations or were supposed to be acceptable to them. Everywhere throughout the country it is said that whenever labor organizations dictate or control the nomination of judges, they select lawyers of inferior education and talents and not of superior character and independence. It is high time that this truth was well pondered by labor.

One of the real causes for the discontent with the administration of justice in our state courts, and particularly in the larger cities, is that judges are nominated and elected not because of their legal ability and personal character, but because of their party affiliations or their supposed friendship or sympathy for or inclination to favor one class as against another. If the personnel of our Court of Appeals and Appellate Divisions has thus far been kept uniformly high and pure, it is because of the constant efforts of the bar. If labor organizations and the people at large will now cooperate with the bar, who in this matter are the proper leaders of public opinion, there will be infinitely less occasion for complaints of delay or incompetency or partiality in the administration of justice. The multiplication of incompetent judges means the multiplication of the causes of delay, new trials, denial or miscarriage of justice, expense, discontent and suspicion. The cure for these evils is with the people themselves, and it will be brought about only when they shall insist upon the nomination and election of lawyers of learning, character and independence.

It must be plain to all who have studied the facts and reflected upon existing tendencies that during the past twenty years the amendments to the laws regulating nomination and election to public office have served to strengthen and perpetuate the control of political leaders and political machines. Many bills introduced and loudly acclaimed as reforms have in truth proved to be not reforms at all, but steps in the dark and backward.