The commoner. (Lincoln, Neb.) 1901-1923, May 17, 1912, Page 10, Image 12
.4 t ttf" i v i pataw wi i , r . 1' U t rtv l,-,-,w,-r.wJWiB5MHtt s & . i-cl 10 The Commoner. VOLUME 12, NUMBER If DO OUK COURTS 8TAND IN TUB WAY OP BOCIAL AND ECO NOMIC rilOGKESS? (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 SonK-VocniM Wanted, cash or royalty to you. Noodham Music House, 102-5, Bt. Louis, Mo. ECZEMA CAN IJIC CUKKD. My mild, soothlntr, Rimrnntccd euro does It and Fiu:k Sam 1'i.k proves It. BTorsTui: Itciiino nnd cures to lay. Wiutk Now Today. Dr.CANNADAV, 174 Park Square, Sedalia, Mo. 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 legislation. 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 1 BARGAIN OFFER , for Limited Time to New or Renewing Subscriber s THE COMMONER and THRICE-A-WEEK NEW YORK WORLD, both One Year for Only One Dollar. 1 Addrea Orders to THE COMMONER, Lincoln, Nebr Twelve Special One Dollar Club Offers Tho Thrico-a-Weok New) Our York World Special Price Tho Commoner ) $1.00 American Homestead... American Homestead...) Our Woman's World Special Prico Tho Commoner ) ai.00 ;;; Chattanooga News.. American Homestead Tho Commoner Commercial Appeal ) American Homestead. .. Tho Commoner ) Weekly Enquirer.... 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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 them? The courts themselves ca.ae 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? BEAUTIFUL UP-TO-DATE HAND BAG . . i jjl m ii V MJ 4 I ' Here is a premium that will delight a number of our lady friends. Think of It, a beautiful Ecru Crash Bag all readv mrwin fHvnn o-.-., ri?... 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