Page:The Green Bag (1889–1914), Volume 25.pdf/141

This page needs to be proofread.


128

The Green Bag

declared that the people are not satis fied with the naming of judges, in New York State, by political and business "interests," subjecting them to the influence if not the control of men who have no sympathy with organized labor or with^the masses; moreover, from a bench thus selected "we do not get or expect any favors, and not always evenhanded justice," almost all labor laws being crippled by construction or held to be nullities. Another labor leader said that judges should be made to understand that their functions are judicial and not legislative, and "that they are paid for the enforcement of law as enacted by the legislature and not for the annulling of that law and creating laws of their own." It is not necessary to make further quotations. The notion that the courts fawn on the rich and frown on the poor underlies most of the criticisms and is presented in a variety of forms. Some of the replies are more specific than others in specifying the labor statutes thought to have been wrongly decided unconstitutional, and in denouncing fancied abuses of the injunction. Mr. Guthrie, in a supplemental report, concedes that the writers of these letters are sincere, and is also encouraged by the spirit of the replies to hope for candid co-operation in an impartial and thorough investigation. Nevertheless, says Mr. Guthrie, "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 inex cusably inaccurate. . . . The pity is that many of the critics of our courts are lamentably ignorant of the subject about which they are writing or de claiming, and, unconsciously and unin tentionally in some instances, misrep resent and distort the facts."

Mr. Guthrie then points out that the courts should not be blamed for the faults of the legislature; in the case of Knisley v. Pratt, 148 N. Y. 372, for instance, the court in rendering deci sion took account of the fact that the statute did not disclose a plain intent on the part of the legislature to abro gate the assumed risk doctrine, and for seventeen years, since that decision was pronounced, the legislature has failed to change the law, though it could easily have done so. Yet the Court of Appeals has in the meantime "been assailed before the whole country for its lack of sympathy with the poor and helpless and with social progress!" With regard to the so-called selection of judges by the "interests," Mr. Guthrie's report condemns this baseless accusation and points out the need, not of "indiscriminate criticism or unfounded abuse of the courts," but of such practical remedies as shall bring about the nonpartisan election of judges, greater permanency in the tenure of prosecuting officers, and such competent assistance as the district attorney may require for the prompt transaction of the business of his office. The misinformation of attacks on the injunction as a means of oppressing labor is pointed out, by calling attention to the fact that in New York a perma nent injunction is never granted with out notice and without an opportunity to be heard, while a temporary restrain ing order is never issued without notice of hearing unless the danger of irrep arable injury from delay be very grave. The alleged hostility of the courts to legislation has also led Mr. Walter Shaw Brewster to make an examination of the subject in a special report (Ap pendix B). He draws attention to the fact that by the common law of England combinations to raise wages were unlaw