The tendency, which is most clearly indicated by the mass of decisions in cases demanding damages for injuries or death, is the growing disposition to make property paramount and life subordinate. It is a common practice to set aside verdicts of damages on the score that they are excessive. It is no less a common practice to instruct the jury to decide for the defendant in order to rebuke litigation. The language of the leading work on one phase of this subject--Shearman and Redfield’s “A Treatise on the Law of Negligence”--sums up the matter in a few words:--
“It has become quite common for judges to state as the ground of decisions the necessity of restricting litigation. Reduced to plain English, this means the necessity of compelling the great majority of men and women to submit to injustice in order to relieve judges from the labor of awarding justice.... The stubborn resistance of business corporations, common carriers, and mill-owners, to the enforcement of the most moderate laws for the protection of human beings from injury, and their utter failure to provide such protection of their own accord, ought to satisfy any impartial judge that true justice demands a constant expansion of the law in the direction of increased responsibility for negligence.”
“Law,” wrote Sir Edward Coke, “is the perfection of reason.” This may be true; but, if so, it tends to throw mankind over to the position of the Catholics, that the reason itself needs considerable perfecting. This is not only the disposition of the lay mind, but, evidently, also of the supreme judicial mind; for a large part of the higher judicial activity during recent years has been expended in declaring null and void laws passed by two houses of the people’s representatives and signed by an elected Governor or President. Mr. Stimson, in his summary of labor legislation for the years 1887-97, found that only 114 out of the 1639 laws passed had been declared unconstitutional. But these 114 comprised examples from 19 out of the 35 classes of legislation passed, and must therefore have reacted upon a very considerable number of the remainder. It is a coincidence which has been noted before, and need not be specially insisted upon here, that the overwhelming majority of laws which fail to reach the constitutional standards set by our judges are those intended to safeguard the interests of the industrially subordinate and to set some limitation to the powers of the industrially mighty.