The commoner. (Lincoln, Neb.) 1901-1923, May 17, 1912, Page 10, Image 12

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The Commoner.
(Continued from Pago 7.)
eonduct," was clearly within the
constitutional prohibition against
tho taking of a man's property with
out duo process of law. Neverthe
less, many if not most of us did not
boo thon, nor are wo able to see yet,
aftor duo reflection, that thero was
any talcing by tho statuto of tho cm
. ployor'B property at all, ovon in
directly. Did not tho legislature
havo the power to shift tho neces
sary and inherent risks from work
man to employer? And did it not
havo tho power to modify or do away
with tho common law rule of con
tributory nogllgenco, and also the
liko rulo of negligenco of a follow
servant? Such a statuto does no
more than add tho expenso of such
lecidonts to tho employer's cost of
production, and It is olomentary that
the cost of production is included in
tho value or sale prico of the finished
article, and that theroforo tho ox
ponso of such accidents would fall
on tho community or those who buy
tho product. The employer would
moot with no loss in tho end. And
yot they said his "property" was be
ing taken by tho addition of this new
oxpenso of production.
Wo are soon to havo a now con
stitutional convention in this state,
and I trust that it will make short
work of this decision that it will
"recall" it without scruple or hesita
tion. It is pitiful to see such de
cisions in this country. Thirty-two
different governments of the world,
in fact every civilized government in
tho world outside of this country,
has an employers' liability act, also
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embracing provisions for tho taxa
tion of business in which workmen
are employed to raise a fund for tho
payment of such damages for deaths
and injuries by accidents. Russia
has a model employers' liability and
compensation statute. Three or four
yoars ago England amendod its
meagre employers' liability statute
by following the Russian and other
European statutes. Prussia had
such a statuto as early as 1847. We
are only beginning to think of pass
ing such statutes in this country. In
this as in other modern social and
economic progress we lag behind the
world. And the first attempt we
make at it is met by these court
decisions. If the courts persist in
such decisions, it will be necessary
to amend every constitution we have
in this country, although the people
In enacting them never meant that
they should stand in the way of such
But some of the decisions, like
those I havo enumerated, are al
ready becoming obsolete. Every one
is beginning to see that they are far
fetched and unsound, not to say, in
moTo plain speech, a usurpation of
legislative power. If we do not pass
any constitutional amendments to do
away with them, it is inevitable that
we shall shed them as a nake sheds
its skin; wo will in the course of
timo just shuffle them off and go
along without them.
Any one who wants to realize how
futile decisions of tho courts, and
even statutes, are to frustrate eco
nomic and commercial progress in the
long run, has only to read the for
mer statutes and court decisions of
England against "forestalled, re
graters and engrossers." A "fore
staller" was one who bought goods
while they were on their way to mar
ket. He forestalled the market. It
was made a criminal offense. The
"regrater" was one who sold goods
in tho same market in which he had
bought them. That was a criminal
offense. An "engrosser" was one
ono who purchased food products,
and stored them up in gross, "en
grossed" them, as it was called, and
hold them to sell at his own time at
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a higher prico if ho could. He was
the arch-monopolist, and severely
punished by statute also. If such
laws had existed in the time of
Joseph in Egypt ho could not have
laid up during tho years of plenty
for tho coming period of famine.
But they knew no such folly in those
days. Instead of doing good, these
nnd like laws worked nothing but
mischief and injury in England, and
in the other countries of Europe in
which they were enacted. They
could not change the natural course
of trade. By hampering it, however,
and subjecting merchants to con-
stant penal danger, and extraordi
nary expense, they did the exact
opposite of what was intended; they
lessened production, caused an im
perfect distribution, made prices un
stable, and even brought on famine.
The legislature might as well try to
regulate the seasons. In the words
of Macaulay, "In spite of the legis
lature the snow would fall when the
sun was in Capricorn, and the flow
ers would bloom when It was in
Cancer." And the same may be just
as well said of judicial decisions.
These laws were finally repealed in
the latter part of the eighteenth
century, a few years before Adam
Smith published his great economic
work, "The Wealth of Nations." I
never read a chapter of this 'incom
parable man without mentally say
ing ot him what our Emerson has so
finely said of Shakespeare: "He was
a wonder; he struck 12 every time."
But when parliament -repealed these
laws, the courts of law forthwith
placed themselves obstinately in the
way of the reform, 'x'he judges said
that the common law had from the
beginning been the same as the re
pealed statutes, and that the re
peal revived the common law. This
left the law unchanged, and they
continued to try and convict offend
ers the same as under the statutes.
You have only to read the trial of
poor Rusby before Lord Kenyon in
the last year of the eighteenth cen
tury for "regrating" 30 quarters of
oats, as it is givtn in Peake's Re
ports. "Though in an evil hour all
the statutes which had been exist
ing for a century wero at one blow
repealed, I thank God the provisions
of the common law were not de
stroyed," exclaimed Lord Kenyon in
charging the" jury. Adam Smith,
who had recently died, was de
nounced by the judge. He had writ
ten that fear of the thin maA
criminal offenses by these statutes
regulating trade was ridiculous; that
they were no more to be feared than
witchcraft. Lord Kenyon exclaimed,
"I wish Dr. Adam Smith had lived to
hear the evidence in this court today,
and then he would have seen
whether such an offense exists and
whether it is to be feared." Poor
Adam Smith! How little he appeared
that day in that court compared with
the "great" Judge Kenyon who spoke
out so dogmatically and. self-confi-dently.
But how is it now? Ami w
me ask, will the decisions of our
courts interfering with and regulat
ing the course of business, trade and
commerce at the present time appear
any less absurd in the noxt genera
tion than the like decisions cf Lord
Kenyon and his associates appeared
to the generation which followed
The courts themselves to see
after awhile that the indirect and ex
treme construction they were putting
on this "liberty" and "property" pro
vision of the constitution, instead of
keeping to the plain and ordinary
sense in which these words had al
ways been used and understood in
England and here in constitutional
provisions and statutes, was unten
able and mischievous. It stood in
tho way of legislation necessary for
the general welfare, and that would
not bo tolerated by enlightened pub
lic sentiment in. this country any
more than it is or ever has been any
where else in the world. It was op
posed to tho long-settled maxim in
human as well as in natural law, that
the use of private property was sub
ordinate to tho general welfare, and
could be restricted to conform there
to, although made less valuable
thereby. They therefore began to
slide by or climb over their decisions
by declaring that notwithstanding
this constitutional provision, i. e.,
the indirect and far-fetched con
struction they had put upon it, legis
lation tending to the health, comfort,
safety, and general welfare of so
ciety," -vyould be excepted and up
held. This they assumed to do
under what they called the general
police power of government an
elastic, undefinable and. even mis
leading phrase, as they freely admit
in their decisions. But who was to
be the judge of such legislation, i. e.,
as to whether it tended to tho gen
eral health, comfort, safety and wel
fare? The legislature, representing
the community? No; the judges
took that unto themselves. They
judge thereof over the head of the
legislature, and declare legislation
unconstitutional which exceeds their
opinion of what is economically or
socially wise or beneficial. No such
power was ever given to the courts.
They have simply taken it away from
the legislative department of govern
ment. They have set themselves up
as the "protectors" of society against
the law-tnaking power, safe-guarded
as it is by the consent of two houses
and the executive .veto. They do not
seem to consider who Is to protect us
against them in their judicial legis
lation. In the pases of the under
ground bakeries, the manufacture of
tobacco in tenements, the working of
women in factories at night, and so
on, was not the legislature, repre
senting the community, as fit, at.
least, as any judge, or a bencli of 'd
few judges, mere mortals like the
rest of us, to judge of the wisdom
or advisability of the laws passed,
from the standpoint of tho moral,
economic and social welfare and pro
gress of society?
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